If you have filed for divorce or legal separation, or are thinking about it, you have probably come across some of the following terms (or will soon), but what exactly do they mean?
Dissolution of Marriage vs. Legal Separation:
One common misconception is that a legal separation is a stepping stone to divorce, or it is a different process altogether. However, the process for a legal separation and divorce is essentially the same. Both a legal separation and divorce result in a permanent order that will permanently divide the marital property (assets and debts) and allocate parental responsibilities (if there are minor children of the marriage). The key difference between the two is that for a legal separation, you are still married and cannot remarry until a divorce decree is entered. After a decree of legal separation is entered, either party may petition for the court to enter a divorce decree once six months have passed. This will not require a new hearing or any change in the substance of the permanent order.
Contested Divorce vs. Uncontested Divorce:
Whether you and your soon-to-be ex agree on all of the issues, or nothing at all, the process for filing for divorce is still the same. You should still file the same initial paperwork, attend an Initial Status Conference and disclose financial documents. The financial disclosures can be cumbersome and frustrating, especially if you both have an agreement on how property should be divided. However, it is still important. First, it ensures that you are both on the same page regarding what needs to be divided and the amount being divided. Second, completing the required disclosures at the beginning stage can protect the parties from misunderstandings going forward and from the statutory five year look-back period. Either party has five years from the date of the decree to request the Court reopen the case and redo the property division. The party asking for this to happen would need to show there was a misstatement or omission in the required disclosures and that this materially affected the division. By turning in the complete financial disclosures in the beginning, this should protect you from the other party claiming in the future that there were omissions or misstatements.
Separate Property vs. Marital Property:
In Colorado, marital property is any asset or debt that was acquired by either spouse from the date of the marriage until the Decree (either divorce or legal separation) is entered. Even if you have been living apart for years, all of the property is still marital property. If property is marital property, this means the Court has jurisdiction to decide how it should be divided, not that it must be divided equally (see equitable division vs. equal division below). Separate property is property that either spouse had before the marriage, property inherited or given as a gift to one spouse, or property excluded by a valid agreement (such as a pre or postnuptial agreement). The party claiming that property is separate must prove that the property is in fact separate property. If the Court finds that property is separate property, this means the Court has no jurisdiction to divide that property. Another important thing to note is that even if property is separate, the increase in value of that property is considered marital. For example, if one spouse has a 401k from before the marriage, the increase in value of that 401k is marital property.
Equitable Division vs. Equal Division:
By statute, the Court is required to divide all marital property and debts equitably. This does not mean the division must be equal, it means the Court must find the division is fair. A good starting place is often an equal division of property and debt. However, there are a number of factors the court is required to consider in deciding what an equitable division of property is. If after considering all of the factors, the court finds an equal division is fair, it may divide the property and debts equally, but there is no legal requirement that the Court do so without first finding that an equal division is equitable.
Finding yourself faced with the decision of a Divorce or a Legal Separation can be overwhelming and confusing. If you find yourself with unanswered questions, contact us to schedule a free, no-obligation 30-minute consultation.