In Part I, we discussed the divorce process and how to build your professional team in order to best prepare you for what lies ahead. In Part II, we discuss what you may need to know once you find yourself in the divorce process. We cannot cover all of your possible questions here, so please reach out to me if you’d like to learn more about the legal theories involved in your specific case.
How are Child Support and Maintenance calculated?
The court relies on a set of guidelines for both child support and maintenance calculations, but does not have to follow the Guidelines in all cases. A lawyer can help you understand whether the Guidelines might apply and if so, which factors are most likely to control in your case.
For Child Support, the main factors to be considered by courts are:
- Incomes of both spouses
- Number and ages of any children
- Amount of overnights each child spends with each parent
- Whether either parent pays for health insurance, day care, or other extraordinary expenses
- Whether either parent has any other children outside of this marriage
For Spousal Maintenance, the main factors to be considered by courts are:
- Incomes of both parties
- Length of marriage
- Standard of living during marriage
- Whether the lesser earning spouse can provide for his/her own needs with his/her property and suitable employment
- Whether the higher earning spouse can afford to pay spousal maintenance while also meeting his/her own needs
However, the suggested child support or spousal maintenance obligation can vary tremendously based on a minor adjustment to any one of the above factors and can also be affected by other circumstances in your case. For these reasons, it is very important that you consult with a lawyer regarding your potential financial rights and responsibilities before heading into a mediation or a courtroom.
Will it matter during the divorce if my spouse cheated on me?
Colorado is a “no-fault” divorce state. This means that the court will not punish either spouse for marital infidelity. Therefore, it is very important for divorcing spouses to focus on the legal issues rather than emotional wrongs inflicted by the other party. If a judge senses that a spouse is just being spiteful during litigation, the judge may actually punish the scorned spouse for being overly litigious by issuing sanctions. This can be a difficult concept to understand and move through for someone who is feeling hurt and may be seeking “justice” for the actions of his/her ex. I suggest seeking out a therapist experienced in helping patients deal with feelings of betrayal, loss, and desire for retribution, particularly within the context of divorce.
How does a party’s (questionable) behavior affect the amount of parenting time they get?
A parent is presumed to be fit and act in his/her child’s best interest until proven otherwise. Additionally, courts prefer to see both parents remain active and involved with their children in healthy co-parenting relationships. Therefore, unless a parent’s questionable behavior has a direct and measurable negative impact on their child(ren), such as physical injury or severe psychological trauma, a court is not likely to consider it when determining how much parenting time is appropriate.
Even parents who grapple with substance abuse are encouraged to have as much parenting time as possible while serving the best interests of children. Therefore, if a parent struggles with drugs or alcohol but does not allow him or herself to become intoxicated while caring for the children or during times when that parent must remain responsible for the children in case of emergency, the substance abuse is not likely to weigh heavily in a parenting time determination. Conversely, if a parent is unable to control their use of drugs or alcohol when children are present, courts will take this very seriously.
I have heard of a PRE and a CFI. What are those?
A PRE or CFI is an independent professional the Court may appoint to investigate your home life and provide a report to the Court. The investigations vary in scope depending upon the legal issues in your case, but this investigator’s job is always to inform the Court about what is going on that could impact the children and to make a recommendation for parental responsibilities in the current case based on the investigator’s opinion on what would be in the child(ren)’s best interests.
Do I have to let my child stay overnight with my spouse and his/her new significant other?
Every parenting arrangement is different before, during, and after a divorce. However, if you (or the court) would be comfortable having your child(ren) stay overnight with your spouse alone, then you should probably also permit the child to stay overnight even when a new significant other is present. There are exceptions to this, such as when you suspect that your child cannot be kept safe around the new individual. If this is a concern for you, first talk to the other parent. If this does not resolve your concern, consult with a lawyer about what to do.
What should I consider when deciding whether to keep 401(k) or marital home?
When you have a marital home, retirement assets, pensions, businesses, or other assets, whether they are encumbered by debt or not, you should consult with a lawyer about your legal rights to those assets (and your liabilities), but you should also consult with a divorce financial planner. Where a lawyer can help you fight for your fair share of the marital estate (think of this like a pie to be divided), a financial planner can advise you which pieces of property (slices of the pie) will be most beneficial for you to come away with, based on your short and long term goals. Some people would benefit more from immediate liquidity (cash), whereas others may do better long-term with retirement funds waiting for them several years down the road. Since your financial picture is unique and changing, you should consult with a divorce financial planner and allow your lawyer to talk to this person so that they can work together to help you come out of your divorce in the best financial position possible.
In Colorado, the court system is designed to put the best interests of the children first and foremost in divorces when children are involved. Additionally, whether children are involved or not, courts recognize that they are in the position to divide a part of couples lives that can be extremely important. It is often left to the court to decide financial futures should spouses be unable to agree between themselves. Before allowing this process to overwhelm you, contact an attorney to discuss your options and to strategize about how you might exit your marriage with the resources to start fresh, for you and your family. For more guidance, please contact Ms. Woody to schedule a free 30 minute consultation.
Danaé Woody is a family law attorney and founder of Woody Law Firm here in Denver. Her practice is focused on helping families navigate life transitions with the highest quality legal representation. In her spare time, Ms. Woody enjoys volunteerism, reading fiction, and spending time with her own family. You can connect with Ms. Woody on her website or Facebook, or by calling 303-968-1711 to schedule a free consultation.