The Basics of Legal Separation in Colorado
Prior to outlining the Benefits of Legal Separation, it is important to understand what a Legal Separation is. A similar in many respects to a Divorce in Colorado. A Legal Separation is appropriate for couples that are seeking the legal protections of separation but do not wish to terminate their legal status as husband and wife. Although not as common, legal separations do occur, and they are often appropriate based on the unique circumstances of the family. Under Colorado law, the procedure is almost identical to a divorce. Decisions about support and maintenance of the family are still made, but the parties will remain legally married. In the event they desire, they may later convert their separation action into a divorce action.
While grounds for legal separation are typically not required for the action, the parties must still determine where they are going to live during the separation, who is going to pay which bills, and how any children will be cared for. This is also true in divorce, however, with a divorce, you will have the added pressure of deciding about splitting assets and distributing other property. Although a couple does not have to have a legal reason for separating, there are often personal reasons that dictate the situation. Sometimes a couple decides that they want to divorce but gives the spouse who has not committed a fault the opportunity to readjust their priorities . Other times, a couple is facing financial ruin and files for legal separation as an alternative to bankruptcy.
For a legal separation, the parties must file a complaint that fully outlines the circumstances of their marriage and the reasons for separation. After the filing, a waiting period of at least 60 days unless the Court provides otherwise. At this point, uncontested separation agreements (if the parties have reached an agreement) or contested issues are heard. At this hearing, the Court hears evidence, including evidence related to minor children. At this time, the Court will also divide the marital property, award maintenance and establish allocation and schedule of parental responsibility concerning the minor children. The Court may also issue restraining orders and allocate debt.
To obtain a Decree of legal separation in Colorado, the Courts must make the appropriate findings, including findings about parental responsibility decisions, child support, maintenance, custody, decision making, parenting time, and property division. Legal separation in Colorado grants the parties protection and legal remedies in the event of noncompliance. A decree of legal separation will terminate the separation upon motion of either party or by their joint decree. Conversely, a decree of legal separation may be converted to a decree of dissolution (divorce) of the marriage upon the motion of either party. With a divorce, the parties are no longer a married couple.
Monetary Benefits of Separation
If you and your spouse have not had many financial troubles during your marriage, the concept of legal separation may seem strange at first. However, if you have always kept your personal accounts separate, but work closely together with your spouse to manage many shared expenses, it can be important to learn about the financial benefits of legal separation. A legal separation agreement will seek to resolve the following issues in addition to child custody and support issues: In many cases, a legal separation in Colorado can provide benefits that are more advantageous than divorce after you have separated.
Income Tax Benefits Filing taxes after physical separation can be interesting. With many couples, the main source of income after separation is alimony and child support. However, knowing how to allocate these payments when filing taxes can get complicated for the following reasons: Each of these factors can alter tax benefits available to you, so consulting with a tax professional or using tax software to help you avoid unintentional mistakes may be beneficial.
Health Insurance Maintaining health insurance benefits is another important reason that you may want to modify your marital status. In the event that your employer offers benefits to the employees’ families and dependents, you may be able to continue having your family on your plan even after a legal separation.
Debt Management Although divorce might be a better option for someone who has numerous debts since debts will become "separate property," legal separation may allow you to reduce some debt in other ways. For example, if you are planning to move to a more affordable area after legal separation, both parties may want to continue managing debts responsibly. In most situations, when you end a marriage, each party will typically be held responsible for his or her own debts after the date of separation.
Maintaining Martial Benefits without Divorce
A critical issue for a couple contemplating divorce is the impact a divorce will constitutionally and otherwise on their current employees benefits, including health insurance coverage. Part of the reason for this is that if a couple divorces, the Employee Retirement Income Security Act (ERISA) may prohibit the continuation of family health insurance plan coverage, thereby requiring the purchase of an individual policy at a considerably higher cost. With the costs of health insurance skyrocketing in recent years, the necessity for continued family plan coverage should certainly be among the priorities explored by a couple contemplating divorce.
In Colorado, a husband and wife can apply to the Court for a Decree of Legal Separation. Once the Decree is entered, it has all the effect of a final dissolution of marriage with the critical exception that husband and wife may remain married for the purposes of retaining their benefits under their employer’s group health insurance plans. Colorado Courts have been very receptive to entering such Decrees of Legal Separation especially given that the new Internal Revenue Code at Section 417(e) contains language which would allow for the continuation of an ex-spouse as a member of a group health insurance plan indefinitely.
If appropriate to the particular set of circumstances, a Decree of Legal Separation can also be useful in providing financial security to a spouse who would ordinarily be entitled to receive considerable spousal support (alimony) but by virtue of the state of the economy now receives very little. In such case, the Court may enter Orders of Legal Separation providing the wife with Orders to Maintain Health Insurance, Make Mortgage Payments, and Pay Child Support to her even though the parties remain married.
Psychological and Emotional Aspects
When a couple in Colorado is facing irreconcilable differences, their first inclination may be to move forward with a divorce. Often, however, couples who have grown apart can benefit tremendously from a legal separation instead. While in many ways, it feels similar to divorce, a legal separation is not the end of the road for a marriage. Instead, it may be precisely the experience of stepping away that a couple needs to repair the harm that has already been done and lay the foundation for a lasting reconciliation.
In some cases, the period of legal separation can exist as a structured way through which a couple briefly separates without needing to make an immediate decision about divorce. A weld separation agreement is an important document that should contain details about how assets, debts, children, and other details of your marriage will be handled during the period of separation.
Legal separation allows time to think things through. While there are many reasons a couple might feel it is the right time to separate, there are often external pressures to push on to divorce. From family members to friends to pre-formed plans, people may feel they have no choice but to move forward with a divorce. At the same time, a couple may feel uncomfortable about the dissolution of their marriage. A separation gives a couple time to work through their emotions in a way that respects the unique nature of their circumstances. A separation helps to clarify the situation and allows the couple to remain open to all the possibilities the future holds.
A separation serves to protect your financial and legal interests. The outcome of a divorce has innumerable long-term implications. A legal separation ensures that the decisions made about your finances, health care, retirement, and education will reflect your unique needs and circumstances. While you move forward with your lives, decisions are made that are legally binding for the future. Separation allows you to resolve these issues in advance of your divorce.
Legal separation is a chance for a new beginning. Emotions around divorce run the gamut. While it is a dream for some, the reality of a divorce often leaves spirits broken and a sense of loss that is difficult to articulate. For a couple who has just decided to separate, it can be scary to make a decision that involves so much finality. By contrast, a legal separation allows both individuals the opportunity to start over from a place of emotional equanimity. In this way, a relationship can evolve into something new. A separation gives a couple the breathing room they need to expand their futur.
Legal separation may increase the likelihood of reconciliation. In the first days and weeks after deciding to separate, hope dies hard. While accepting the end of a relationship is part of the healing process, sometimes even a temporary separation can work to save a failing relationship. In a separation, both parties can step back and assess their priorities in a way that may have not been possible during their marriage. Ultimately, a legal separation may offer the best of both worlds. For some people, a separation can lead on to a more productive mix of relationship, while others are better equipped to try all they can to reconcile.
Legal Protections During Separation
Legal separation orders can provide financial protection for both parties before they decide to divorce. For example, if spouses are co-owners of a business, a temporary order for separate assets may be entered to prevent either party for engaging in conduct so as to eliminate or diminish the other’s separate property interest.
Colorado courts may include protections for each spouse in the form of a temporary injunctive order, such as preventing one spouse from selling the marital home or from spending down the children’s college funds.
A temporary injunctive order can have a profound effect on whether one spouse remains in a house or apartment that’s owned by the other spouse. For example, the temporary order may allow a spouse to remain in the marital residence until the children finish school and move out of the home, regardless of whether the spouse owns the home or whether he or she has a legal title to the home. The spouse who does not live in the house may be ordered to pay to the spouse who lives in the house a specific amount every month to offset the expenses incurred by the spouse who lives in the home with the children.
Protection of the financial interests of both parties extends to business interests, which may otherwise be sold off before the divorce is final . In particular, while parties are legally separated, they may protect their separate business interests, and any appreciation in value on such interests, by filing a petition for a temporary order that includes a temporary injunction, pending the entry of the permanent orders.
Other provisions of a temporary order can be entered for the protection of minor children of the marriage, such as temporary orders regarding the allocation of parental responsibilities, such as parenting time or parental decision making, specifically when one parent is relocating out of state and the other parent is objecting to relocation and/or is requesting a modification of the parenting schedule after the relocation out of state.
The spouse in possession of the children is protected until the parties "return to the status quo or conditions of the previous home environment," in which case the court may enter a temporary orders for the protection of the children, or refuse to enter such an order if a parent fails to present sufficient grounds for the restraint of the other parent. However, child allocation parenting time schedule may be entered until the court enters the decree or "permanent orders."
Children’s Implications
Legal separation can have a positive impact on your children. Since legal separation itself does not end the marriage, there is the advantage of eliminating the uncertainty that often accompanies a divorce proceeding. Legal separation gives the couple time to figure out whether they can remain together or whether it is time to separate both physically and legally.
Having legal separation in place allows for financial stability for the children. It also provides a clear understanding of responsibilities regarding parenting time for both parents. Many parents may choose to agree on temporary parenting time and financial issues for the kids before going to court with the agreement of a judge. A temporary order of custody will remain in place until a permanent allocation can be made at the final hearing pursuant to C.R.S. 14-10-124(1).
The Process of Legal Separation in Colorado
Pursuing a legal separation in Colorado begins with the same documentation as a divorce. The person asking for the separation files a Petition with the Court. There are forms for Separation Petition, Summons (which is essentially a request to be served), and a Certificate of Compliance regarding Court-Ordered and Child Related Disclosures (which is the form disclosing to the court whether or not there are any Child-related Orders and whether or not there is a continuing restraining order in place). While these forms are required, it is also possible to file a Separation Agreement, which is the Formalization of Rights and Responsibilities regarding Children or a Separation Management Plan. A Separation Agreement is a Court-ordered division of assets, debts and some form of parenting time and/or child support. If you and your spouse are agreeable, you can enter into an informed contract without going to Court; if either party wants to go to Court, they are free to do so. In essence, a Separation Agreement can be negotiated and formalized without going to Court.
After the Petition is filed, the spouse has 30 days to file their Response. The Separation Agreement is filed with the Court. If an agreement cannot be reached, then the case becomes like any other divorce proceeding. If an agreement is reached, you can either submit it directly to the Court – since it doesn’t involve children, mediation or a special appointment with the Judge is not required – or you can ask the Judge to approve it. I generally prefer to set the case for a Court appointment. It does not require as much work from the attorneys in the beginning and it does let the Court review, consider and approve the Agreement, leaving less room for post-decree petulance.
A Separation can, but does not have to, be converted to a Decree. Assuming the parties reach an agreement or some form of Agreement, it can be filed and then once a year passes from the date of the Separation Agreement, either party can petition the Court and ask the Court to convert the Separation into a Decree of Dissolution of Marriage. It is important to remember that a legal Separation is not a divorce. If the parties remain separated, they will be considered married until they petition the Court for a Decree of Dissolution. At that point, with the Order of Dissolution, it is possible for the Separation to become a complete divorce, or it may be possible for the parties to continue living apart but agree on most or all of the terms of a divorce. It is possible to file and ask the Court to proceed on conversion one day after the one year anniversary. Or that day may arrive on its own, as you and your spouse go about living your lives on your own terms.
Pleadings, procedure and disposition. A Separation can sometimes be the best option.
Potential Future Divorce or Reconciliation
For some couples, a legal separation may serve as a necessary step toward an eventual reconciliation: time apart — often with physical distance between the couple — allows for reflection on the marriage, and when they not only consider their lives separately, but they also reevaluate their commitment to one another. A date for separation can establish a new order of things, both for the couple and amongst their family and friends. The distance and time away from each other can help them to rediscover interests and passions, and ultimately determine for themselves and each other whether they really want to be together. Because the terms of legal separation remain in place until one party actively seeks termination of the separation, the door remains open for reconciliation for as long as the couple both desire it to be so.
Colorado law does require that parents discuss the issue of separation or reconciliation and evaluate the impact of either choice on their children for 60 days before an order on parenting time may be entered and 90 days in order to obtain a temporary or permanent order on parenting time and allocation of parental responsibilities on a permanent basis. This time together , albeit under difficult circumstances, encourages the parties to consider their ability to co-parent in a positive and productive manner even if they themselves cannot remain together as a couple.
Over the course of time either during the pendency of the proceedings or after the entry of final orders of legal separation, a couple may come together. A date of separation or legal separation order may serve as a clear time frame to bring about an end of the relationship under specific terms that the parties themselves have agreed to, but once the parties have had some time to reflect and decide whether to get a divorce or reconcile. However, the expiration of the terms of their separation order or date of separation may provide the impetus or opportunity needed for them to reunite as a family and revitalize their marriage.
