Uniform Dissolution Of Marriage Act — C.R.S. 14-10
Uniform Dissolution Of Marriage Act — C.R.S. 14-10| Home | Abstract | Contents | Authors and Site Map | Tables | Index | Bibliography | Comments? | EJF Newsletters | Get EJF Newsletter |
| Chapter 16 — Applicable Colorado Laws |
If any man who has read and understood the following then considers marriage his sanity and reason should be placed in question as a matter of law.
14-10-101 - Short title.
14-10-102 - Purposes - rules of construction.
14-10-103 - Definition and interpretation of terms.
14-10-104 - Uniformity of application and construction.
14-10-104.5 - Legislative declaration.
14-10-105 - Application of Colorado rules of civil procedure.
14-10-106 - Dissolution of marriage - legal separation.
14-10-107 - Commencement - pleadings - abolition of existing defenses - automatic, temporary injunction - enforcement.
14-10-107.5 - Entry of appearance to establish support.
14-10-107.7 - Required notice of involvement with department of human services.
14-10-107.8 - Required notice of prior restraining orders to prevent domestic abuse - petitions for dissolution of marriage or legal separation.
14-10-108 - Temporary order or temporary injunction.
14-10-109 - Enforcement of restraining orders.
14-10-110 - Irretrievable breakdown.
14-10-111 - Declaration of invalidity.
14-10-112 - Separation agreement.
14-10-113 - Disposition of property.
14-10-114 - Maintenance.
14-10-115 - Child support - guidelines - schedule of basic child support obligations - repeal.
14-10-116 - Appointments in domestic relations cases - representation of child - special advocates.
14-10-117 - Payment of maintenance or child support.
14-10-118 - Enforcement of orders.
14-10-119 - Attorney's fees.
14-10-120 - Decree.
14-10-120.3 - Dissolution of marriage upon affidavit - requirements.
14-10-120.5 - Petition for dissolution of marriage - fee - assessment - displaced homemakers fund.
14-10-121 - Independence of provisions of decree or temporary order.
14-10-122 - Modification and termination of provisions for maintenance, support, and property disposition - automatic lien.
14-10-123 - Commencement of proceedings concerning allocation of parental responsibilities - jurisdiction.
14-10-123.3 - Requests for parental responsibility for a child by grandparents.
14-10-123.4 - Rights of children in matters relating to parental responsibilities.
14-10-123.5 Joint custody (Repealed 1999)
14-10-123.6 - Required notice of prior restraining orders to prevent domestic abuse - proceedings concerning parental responsibilities relating to a child.
14-10-123.7 - Parental education - legislative declaration.
14-10-123.8 - Access to records.
14-10-124 - Best interests of child.
14-10-125 - Temporary orders.
14-10-126 - Interviews.
14-10-127 - Evaluation and reports.
14-10-128 - Hearings.
14-10-128.5 - Appointment of arbitrator - de novo review of award.
14-10-129 - Modification of parenting time.
14-10-129.5 - Disputes concerning parenting time.
14-10-130 - Judicial supervision.
14-10-131 - Modification of custody or decision-making responsibility.
14-10-131.5 - Joint custody modification - termination (Repealed, 1999)
14-10-131.7 - Designation of custody for the purpose of other state and federal statutes.
14-10-131.8 - Construction of 1999 revisions.
14-10-132 - Affidavit practice.
14-10-133 - Effective date - applicability.
Couples with a contractual arrangement under a marriage license
Biological parents of minor children
14-10-106 - Dissolution of marriage - legal separation.
14-10-107 - Commencement - pleadings - abolition of existing defenses - automatic, temporary injunction - enforcement.
14-10-107.5 - Entry of appearance to establish support.
14-10-107.8 - Required notice of prior restraining orders to prevent domestic abuse - petitions for dissolution of marriage or legal separation.
14-10-108 - Temporary order or temporary injunction.
14-10-109 - Enforcement of restraining orders.
14-10-112 - Separation agreement.
14-10-114 - Maintenance.
14-10-116 - Appointments in domestic relations cases - representation of child - special advocates.
14-10-119 - Attorney's fees.
14-10-120 - Decree.
14-10-120.3 - Dissolution of marriage upon affidavit - requirements.
14-10-123 - Commencement of proceedings concerning allocation of parental responsibilities - jurisdiction.
14-10-124 - Best interests of child.
14-10-125 - Temporary orders.
14-10-126 - Interviews.
14-10-127 - Evaluation and reports.
14-10-129.5 - Disputes concerning parenting time.
14-10-130 - Judicial supervision.
14-10-131 - Modification of custody or decision-making responsibility.
This article shall be known and may be cited as the "Uniform Dissolution of Marriage Act".
Source: L. 71: R&RE, p. 520, § 1. C.R.S. 1963: § 46-1-1.
Law reviews. For note, "The Extraterritorial Validity of Colorado Divorces", see 7 Rocky Mt. L. Rev. 271 (1935). For article, "Divorce -- Stalemate", see 16 Dicta 107 (1939). For article, "What Divorce Statutes Are Now in Effect in Colorado?", see 21 Dicta 68 (1944). For article, "Ten Years of Domestic Relations in Colorado -- 1940-1950", see 27 Dicta 399 (1950). For article, "Workmen's Compensation, Attorneys and Family Law", see 31 Dicta 1 (1954). For article, "A Proposal for Some Modest Changes in Divorce and Annulment Laws", see 26 Rocky Mt. L. Rev. 221 (1954). For article, "Colorado's New Divorce Law", see 35 Dicta 219 (1958). For note, "The New Colorado Divorce Statute", see 31 Rocky Mt. L. Rev. 207 (1959). For article, "Due Process in Involuntary Civil Commitment and Incompetency Adjudication Proceedings: Where Does Colorado Stand?", see 46 Den. L.J. 516 (1969). For article, "Divorce Policy and Divorce Reform", see 42 U. Colo. L. Rev. 403 (1971). For article, "Effects of Reconciliation on Separation Agreements in Colorado", see 51 U. Colo. L. Rev. 399 (1980). For article, "Mediation of Contested Child Custody Disputes", see 11 Colo. Law. 336 (1982). For article, "Colorado: Now a Community Property State?", see 25 Colo. Law. 55 (May 1996). For article, "Blending Spousal Tort Claims and Colorado Divorce Actions", see 25 Colo. Law. 57 (May 1996).
Act applicable regardless of date marriage began . Regardless of the date the marriage began, if the dissolution of marriage occurs after the effective date of this article, the parties are subject to all provisions of the uniform act. In re Lester, 647 P.2d 688 (Colo. App. 1982).
(1) This article shall be liberally construed and applied to promote its underlying purposes.
(2) Its underlying purposes are:
(a) To promote the amicable settlement of disputes that have arisen between parties to a marriage;
(b) To mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage; and
(c) To make the law of legal dissolution of marriage more effective for dealing with the realities of matrimonial experience by making an irretrievable breakdown of the marriage relationship the sole basis for its dissolution.
Source: L. 71: R&RE, p. 520, § 1. C.R.S. 1963: § 46-1-2.
Every state as a sovereign has rightful and legitimate concern in marital status of those persons who are domiciled within the state. Viernes v. District Court, 181 Colo. 284, 509 P.2d 306 (1973).
Marriage is favored over less formalized relationships. The state of Colorado has an interest in marriage, and marriage is favored over less formalized relationships which exist without the benefit of marriage. In re Newman v. Newman, 653 P.2d 728 (Colo. 1982).
Temporary support orders further purpose of article to mitigate potential harm to spouses and their children caused by the process of legal dissolution of marriage by maintaining status quo pending final disposition of dissolution proceeding. In re Price, 727 P.2d 1073 (Colo. 1986).
Joinder of interspousal tort claims with marriage dissolution proceedings precluded. Marriage dissolution action cannot be joined with an interspousal claim sounding in tort since this section encourages the amicable settlement of disputes between parties to a marriage. Simmons v. Simmons, 773 P.2d 602 (Colo. App. 1988).
This act provides separate sections that govern the different elements of a dissolution order, specifically property disposition, maintenance, child support, and attorney fees. The court is required to make separate orders regarding these elements based on separate considerations, and may not commingle one element with another. In re Huff, 834 P.2d 244 (Colo. 1992).
The public policies to be furthered under this act include dividing of assets equitably and mitigating the harm to spouses and children. These policies take precedence over any contract arguments that may be raised by either spouse. Thus, the trial court was correct in refusing husband's indemnification argument and in interpreting the divorce decree as requiring the husband to compensate the wife for the fair market value of business property apportioned to her in the equitable distribution. In re Plesich, 881 P.2d 379 (Colo. App. 1994).
(1) As used in this article, unless the context otherwise requires, the term "decree" includes the term "judgment"; and, for the purposes of the tax laws of the state of Colorado or of any other jurisdiction, the term "maintenance" includes the term "alimony".
(2) Whenever any law of this state refers to or mentions divorce, annulment, or separate maintenance, said law shall be interpreted as if the words dissolution of marriage, declaration of invalidity of marriage, and legal separation, respectively, were substituted therefor.
(3) On and after July 1, 1993, the term "visitation" has been changed to "parenting time". It is not the intent of the general assembly to modify or change the meaning of the term "visitation" nor to alter the legal rights of a parent with respect to the child as a result of changing the term "visitation" to "parenting time".
(4) On and after February 1, 1999, the term "custody" and related terms such as "custodial" and "custodian" have been changed to "parental responsibilities". It is not the intent of the general assembly to modify or change the meaning of the term "custody" nor to alter the legal rights of any custodial parent with respect to the child as a result of changing the term "custody" to "parental responsibilities".
Source: L. 71: R&RE, p. 520, § 1. C.R.S. 1963: § 46-1-4. L. 72: p. 595, § 73. L. 73: p. 552, § 1. L. 93: (3) added, p. 576, § 5, effective July 1. L. 98: (3) amended and (4) added, p. 1376, § 1, effective February 1, 1999.
Cross references: For the legislative declaration contained in the 1993 act enacting subsection (3), see section 1 of chapter 165, Session Laws of Colorado 1993.
(1) This article shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this article among those states which enact it.
(2) The term "irretrievable breakdown" shall be construed as being similar to other terms having a like import in the law of other jurisdictions adopting this or a similar law.
Source: L. 71: R&RE, p. 520, § 1. C.R.S. 1963: § 46-1-3.
The general assembly recognizes that it is in the best interests of the parties to a marriage in which a dissolution has been granted and in which there are children of the marriage for the parties to be able to resolve disputes that arise subsequent to the dissolution in an amicable and fair manner. The general assembly further recognizes that, in most cases, it is in the best interests of the children of the marriage to have a relationship with both parents and that, in most cases, it is the parents' right to have a relationship with their children. The general assembly emphasizes that one of the underlying purposes of this article is to mitigate the potential harm to the spouses and their children and the relationships between the parents and their children caused by the process of legal dissolution of marriage. The general assembly recognizes that when a marriage in which children are involved is dissolved both parties either agree to or are subject to orders which contain certain obligations and commitments. The general assembly declares that the honoring and enforcing of those obligations and commitments made by both parties is necessary to maintaining a relationship that is in the best interest of the children of the marriage. In recognition thereof the general assembly hereby declares that both parties should honor and fulfill all of the obligations and commitments made between the parties and ordered by the court.
Source: L. 88: Entire section added, p. 633, § 8, effective July 1. L. 98: Entire section amended, p. 1376, § 2, effective February 1, 1999.
Intent of act requires enforcement of child support agreement even though it does not specify a dollar amount. To allow otherwise would be to allow father to unilaterally terminate child support obligation without first obtaining an order of modification. In re Meisner, 807 P.2d 1205 (Colo. App. 1990).
(1) The Colorado rules of civil procedure apply to all proceedings under this article, except as otherwise specifically provided in this article.
(2) A proceeding for dissolution of marriage, legal separation, or declaration of invalidity of marriage shall be entitled "In re the Marriage of........ and..........". A proceeding for the allocation of parental responsibilities or a support proceeding shall be entitled "In re the (Parental responsibilities concerning) (Support of)..........".
(3) The initial pleading in all proceedings under this article shall be denominated a petition. A responsive pleading shall be denominated a response. Other pleadings and all pleadings in other matters under this article shall be denominated as provided in the Colorado rules of civil procedure.
Source: L. 71: R&RE, p. 521, § 1. C.R.S. 1963: § 46-1-5. L. 98: (2) amended, p. 1395, § 33, effective February 1, 1999.
Annotator's note. Since § 14-10-105 is similar to repealed § 46-1-2, C.R.S. 1963, and CSA, C. 56, § 3, relevant cases construing those provisions have been included in the annotations to this section.
The rules of civil procedure, where the divorce statutes are silent as to any method of procedure, govern. Myers v. Myers, 110 Colo. 412, 135 P.2d 235 (1943); Holman v. Holman, 114 Colo. 437, 165 P.2d 1015 (1946).
The rules of civil procedure apply to a divorce action, unless a contrary rule appears in the divorce statutes. Bacher v. District Court, 186 Colo. 314, 527 P.2d 56 (1974).
Service of notice in proceedings under this article is governed by the rules of civil procedure. In re Henne, 620 P.2d 62 (Colo. App. 1980).
On the question of venue in divorce actions, C.R.C.P. 98(c) is controlling, notwithstanding this article concerning divorce actions and kindred matters. People ex rel. Stanko v. Routt County Court, 110 Colo. 428, 135 P.2d 232 (1943); Brownell v. District Court ex rel. County of Larimer, 670 P.2d 762 (Colo. 1983).
For the purpose of the venue requirements in C.R.C.P. 98, the petitioner and respondent in a dissolution of marriage proceeding are the equivalent of a plaintiff and defendant, respectively. Brownell v. District Court ex rel. County of Larimer, 670 P.2d 762 (Colo. 1983).
There is no specific venue statute which would override the rules of civil procedure. Bacher v. District Court, 186 Colo. 314, 527 P.2d 56 (1974).
The rules of procedure do not govern procedure and practice in actions in divorce where they may conflict with the procedure and practice provided by the applicable statutes. Moats v. Moats, 168 Colo. 120, 450 P.2d 64 (1969).
There is no exception in this section which dispenses with the necessity of filing a motion for a new trial, or which permits the court in the exercise of its discretion to dispense with such a motion. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).
Order under C.R.C.P. 54(b) authorized. This section, providing that the Colorado rules of civil procedure apply to dissolution proceedings except as "otherwise specifically provided in the act", and § 14-10-120, providing that a decree of dissolution of marriage is "final" when entered, subject to the right of appeal, authorize the trial court to enter an order pursuant to C.R.C.P. 54(b) making the decree final for purposes of appeal. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).
Appealability of decree on entry of such order. Upon the entry of an order under C.R.C.P. 54(b) a decree of dissolution of marriage may be appealed prior to entry of permanent orders on the issues of child custody, support, and division of property. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).
Applied in Hubbard v. District Court, 192 Colo. 98, 556 P.2d 478 (1976); Menne v. Menne, 194 Colo. 304, 572 P.2d 472 (1977); In re Femmer, 39 Colo. App. 277, 568 P.2d 81 (1977); In re Gallegos, 41 Colo. App. 116, 580 P.2d 838 (1978); M & G Engines v. Mroch, 631 P.2d 1177 (Colo. App. 1981); In re Boyd, 643 P.2d 804 (Colo. App. 1982).
(1) (a) The district court shall enter a decree of dissolution of marriage when:
(I) The court finds that one of the parties has been domiciled in this state for ninety days next preceding the commencement of the proceeding;
(II) The court finds that the marriage is irretrievably broken; and
(III) The court finds that ninety days or more have elapsed since it acquired jurisdiction over the respondent either as the result of process pursuant to rule 4 of the Colorado rules of civil procedure or as the result of the act of the respondent in joining as copetitioner in the petition or in entering an appearance in any other manner.
(b) In connection with every decree of dissolution of marriage and to the extent of its jurisdiction to do so, the court shall consider, approve, or allocate parental responsibilities with respect to any child of the marriage, the support of any child of the marriage who is entitled to support, the maintenance of either spouse, and the disposition of property; but the entry of a decree with respect to parental responsibilities, support, maintenance, or disposition of property may be deferred by the court until a time subsequent to the decree of dissolution of marriage upon a finding that such deferral is necessary in the best interests of the parties.
(2) If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form unless the other party objects.
Source: L. 71: R&RE, p. 521, § 1. C.R.S. 1963: § 46-1-6. L. 73: p. 552, § 2. L. 77: (1)(a)(I) and (1)(a)(II) amended and (1)(a)(III) added, p. 823, § 1, effective June 1. L. 98: (1)(b) amended, p. 1395, § 34, effective February 1, 1999.
Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 2, 205, 211-214, 862, 882.
C.J.S. See 27A C.J.S., Divorce, § § 1, 7, 13-21, 96-107, 369-371, 611-617.
Law reviews. For article on residence of plaintiff in divorce action, see 25 Dicta 110 (1948). For article, "Ten Years of Domestic Relations in Colorado -- 1940-1950", see 27 Dicta 399 (1950). For comment on People v. District Court, appearing below, see 31 Dicta 118 (1954). For article, "One Year Review of Civil Procedure and Appeals", see 37 Dicta 21 (1960). For article, "One Year Review of Domestic Relations", see 37 Dicta 55 (1960). For article, "One Year Review of Domestic Relations", see 40 Den. L. Ctr. J. 115 (1963). For article, "Child Support Obligations After Death of the Supporting Parent", see 16 Colo. Law. 790 (1987).
Annotator's note. Since § 14-10-106 is similar to repealed § § 46-1-2 and 46-1-3, C.R.S. 1963, § § 46-1-2 and 46-1-3, CRS 53, CSA, C. 56, § § 6 and 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
An action for divorce is of a purely personal nature. Wood v. Parkerson, 163 Colo. 271, 430 P.2d 467 (1967); Morris v. Propst, 98 Colo. 213, 55 P.2d 944 (1936).
The power of the court in such an action to issue decrees relative to alimony, to exonerate the wife's estate from the husband's claims, and to make orders relative to the care and custody of the children is merely incidental to the primary object of changing the status or relation of the parties to each other. Wood v. Parkerson, 163 Colo. 271, 430 P.2d 467 (1967).
Such actions, in the absence of a statute providing to the contrary, abate absolutely upon the death of either party before judgment, and cannot be revived in the name of or against the representatives of the deceased party. Wood v. Parkerson, 163 Colo. 271, 430 P.2d 467 (1967).
Masters should not be appointed as a routine matter in divorce cases where the issues are not complex and the facts are not complicated. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).
The trial court may, for good cause shown, allow an extension of time within which to file an answer in a divorce action, even though the original time within which to file has expired. Reap v. Reap, 142 Colo. 354, 350 P.2d 1063 (1960).
Not abuse to refuse continuance when party could not appear. It is not an abuse of discretion for the court to refuse to grant a continuance at a hearing as to the question of dissolution of the marriage, where the wife could not appear at the hearing. In re Lester, 647 P.2d 688 (Colo. App. 1982).
Deferring property division. A specific finding that it is in the best interest of the parties to defer the property division is required to prevent unwarranted delays in dividing property in dissolution of marriage cases. That purpose is complied with when the parties are given time limits within which to submit their proposals for the property division. In re Rose, 40 Colo. App. 176, 574 P.2d 112 (1977).
Domicile is keystone for jurisdiction to determine the marital status, and domicile of one of the parties to the divorce action is required. Viernes v. District Court, 181 Colo. 284, 509 P.2d 306 (1973).
Jurisdiction cannot be conferred by consent; lack of residence cannot be waived. Watson v. Watson, 135 Colo. 296, 310 P.2d 554 (1957); McMillion v. McMillion, 31 Colo. 33, 497 P.2d 331 (1972).
Actual bona fide residence is essential and must be established with some degree of certainty. Watson v. Watson, 135 Colo. 296, 310 P.2d 554 (1957).
Unless the residence required by this section is in some manner shown, the court is without jurisdiction. People ex rel. Plunkett v. District Court, 127 Colo. 483, 258 P.2d 483 (1953).
When bona fide residence in a county is not established, the court is under a mandatory duty to refuse to hear or grant any motions whatever in an action, and its dismissal must follow. People ex rel. Plunkett v. District Court, 127 Colo. 483, 258 P.2d 483 (1953).
Under statutes pertaining to jurisdiction in divorce proceedings, the word "residence" is synonymous with the legal meaning of the word "domicile", and a person's domicile, once established, continues until he acquires legal residence or domicile elsewhere. McMillion v. McMillion, 31 Colo. App. 33, 497 P.2d 331 (1972).
Residence requires domicile. Residence for the purposes of divorce jurisdiction has always required and continues to require domicile. Viernes v. District Court, 181 Colo. 284, 509 P.2d 306 (1973).
Where husband's residency was established by an earlier proceeding as being in Colorado, that determination is res judicata and creates a presumption that he is still a resident, absent a showing that a new residency has been established. McMillion v. McMillion, 31 Colo. App. 33, 497 P.2d 331 (1972).
Where jurisdictional facts are admitted in pleadings, decree is not void for failing to recite them. Jones v. Jones, 71 Colo. 420, 207 P. 596 (1922).
Failure to allege 90-day residence immediately prior to proceeding is not fatal. Section 14-10-107 does not require that a petition for dissolution of marriage contain an allegation that the residency period includes the 90 days immediately prior to the commencement of the proceeding, and petitioner's failure to make her allegation in the words of this section was not a fatal defect. In re Alper, 33 Colo. App. 225, 517 P.2d 404 (1973).
Purpose of residency requirements was to prevent nonresidents from establishing temporary residence to obtain divorce. Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902); Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488 (1911).
An alien who made this state his home, in good faith, and had no residence elsewhere, was a citizen within the meaning of the former statute. Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488 (1911).
Where no witness testified to plaintiff's residence, in answer to any direct question, but in effect it appeared that he had resided here for many years prior to the institution of his action, it was held a compliance with the statute. Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488 (1911).
Where plaintiff alleged and proved more than a year's residence in Colorado before the commencement of the action, but defendant at the time of filing his cross complaint had resided in Colorado less than one year, the allegations of plaintiff's complaint vested the court with jurisdiction of plaintiff and the subject matter. Harms v. Harms, 120 Colo. 212, 209 P.2d 552 (1949).
Where prior to the trial plaintiff had registered to vote in Colorado, his automobile was registered in Colorado, he had a Colorado driver's license, and for several months prior to trial he has been engaged in part-time civilian employment in Colorado Springs in a field in which he intended to continue on his retirement, and plaintiff had for four years been present in Colorado in military service, the foregoing facts formed a sound basis for the finding of the trial judge that the court had jurisdiction based on residence. Mulhollen v. Mulhollen, 145 Colo. 479, 358 P.2d 887 (1961).
Mere presence in state as member of armed forces insufficient to confer jurisdiction but after 90 days domicile may be established. A serviceman may establish a Colorado domicile to support jurisdiction for a Colorado court to grant a decree of dissolution of marriage after he has been stationed in Colorado for 90 days. Viernes v. District Court, 181 Colo. 284, 509 P.2d 306 (1973).
The district courts are invested by the statute with jurisdiction in this class of actions. Pleyte v. Pleyte, 1 Colo. App. 70, 28 P. 23 (1891).
Only a final decree of divorce in a foreign state constitutes a bar to a divorce action in Colorado. In re Quay, 647 P.2d 693 (Colo. App. 1982).
Formerly, where a complaint alleged that the parties were residents of the state of Colorado, and that defendant had been guilty of acts of mental cruelty committed within the state of Colorado, and prayed for divorce alleging sufficient facts to give the court jurisdiction. Raygor v. Raygor, 29 Colo. App. 453, 485 P.2d 930 (1971).
Service by publication insufficient for jurisdiction in custody issue. Service by publication pursuant to the uniform act is not sufficient to vest a trial court with jurisdiction to resolve a custody issue. In re Blair, 42 Colo. App. 270, 592 P.2d 1354 (1979).
A trial court which in fact lacks jurisdiction over the subject matter cannot acquire jurisdiction even though the parties expressly or impliedly consent thereto. Triebelhorn v. Turzanski, 149 Colo. 558, 370 P.2d 757 (1962).
The jurisdiction of the district court of Adams county, arising from the filing and disposition of the divorce action would not preclude the district court of the city and county of Denver from proceeding pursuant to the reciprocal support act when the mother and children had moved to Nevada. Scheer v. District Court, 147 Colo. 265, 363 P.2d 1059 (1961).
A district court is without jurisdiction to hear a divorce action involving two members of a reservation Indian tribe. Whyte v. District Court, 140 Colo. 334, 346 P.2d 1012 (1959), cert. denied, 363 U.S. 829, 80 S. Ct. 1600, 4 L. Ed.2d 1524 (1960).
Where the trial court had jurisdiction to divide property at the time of entry of a final decree of divorce, but did not do so, nor then reserve the matter for further consideration, it lost jurisdiction to thereafter make a valid division of such property. Triebelhorn v. Turzanski, 149 Colo. 558, 370 P.2d 757 (1962); Kelley v. Kelley, 161 Colo. 486, 423 P.2d 315 (1967).
Trial court, which had personal jurisdiction over husband but lacked the authority to divide the husband's military pension as marital property, did not retain jurisdiction to divide the pension at a later date. Even though final decree provided that trial court had continuing jurisdiction over the action and that the wife would remain entitled to any and all military benefits, the court did not have the authority to divide military pension as a result of subsequent case law declaring such pensions to be marital property. Language in final decree refers only to the court's continuing authority to divide property as such court had on the date of the final decree. In Re Booker, 833 P.2d 734 (Colo. 1992).
Federal act specifying whether the court has jurisdiction over a military member's pension preempts state rules of procedure governing jurisdiction. In Re Booker, 833 P.2d 734 (Colo. 1992).
Jurisdiction retained until all matters resolved. A district court which properly acquires jurisdiction of the parties and subject matter in a dissolution action retains that jurisdiction until all matters arising out of the litigation are resolved. Gonzales v. District Court, 629 P.2d 1074 (Colo. 1981).
Jurisdiction does not extend to resolution of all financial issues. Jurisdiction to grant a divorce does not automatically include the right to resolve all financial issues between the parties to the marriage. Viernes v. District Court, 181 Colo. 284, 509 P.2d 306 (1973).
Where it appears from a record and from the conduct of counsel that the parties agreed that a court would defer determination of permanent alimony, property settlement, and related matters until after the entry of a final decree. Rodgers v. Rodgers, 137 Colo. 74, 323 P.2d 892 (1958).
Although, resumption of marital relations by the parties to a divorce action affords good grounds for a dismissal thereof, it does not serve to divest the court of jurisdiction. Stockham v. Stockham, 145 Colo. 376, 358 P.2d 1026 (1961).
Husband's motion to abate and reduce child support amounted to consent to the court's personal jurisdiction. In Re Booker, 833 P.2d 734 (Colo. 1992).
Decree of dissolution entered after a spouse's death is void for lack of jurisdiction, and the dissolution action is abated. In Re Connell, 870 P.2d 632 (Colo. App. 1994).
This section mandates that bifurcation of dissolution proceedings may occur only if the district court finds that "such a deferral is necessary in the best interest of the parties" and should only be considered in exceptional cases. Estate of Burford v. Burford, 935 P.2d 943 (Colo. 1997).
A decree of dissolution when entered by the district court is final to dissolve the marriage even when the district court refuses to certify the decree as a final judgment appealable under C.R.C.P. 54 (b). Estate of Burford v. Burford, 935 P.2d 943 (Colo. 1997).
(1) All proceedings under this article shall be commenced in the manner provided by the Colorado rules of civil procedure.
(2) The petition in a proceeding for dissolution of marriage or legal separation shall allege that the marriage is irretrievably broken and shall set forth:
(a) The residence of each party and the length of residence in this state;
(b) The date and place of the marriage;
(c) The date on which the parties separated;
(d) The names, ages, and addresses of any living children of the marriage and whether the wife is pregnant;
(e) Any arrangements as to the allocation of parental responsibilities with respect to the children of the marriage and support of the children and the maintenance of a spouse;
(g) A written acknowledgment by the petitioner and the co-petitioner, if any, that he or she has received a copy of, has read, and understands the terms of the automatic temporary injunction required by paragraph (b) of subsection (4) of this section.
(3) Either or both parties to the marriage may initiate the proceeding. In addition, a legal guardian, with court approval pursuant to section 15-14-315.5, C.R.S., or a conservator, with court approval pursuant to section 15-14-425.5, C.R.S., may initiate the proceeding. If a legal guardian or conservator initiates the proceeding, the legal guardian or conservator shall receive notice in the same manner as the parties to the proceeding.
(4) (a) Upon the commencement of a proceeding by one of the parties, or by a legal guardian or conservator of one of the parties, the other party shall be personally served in the manner provided by the Colorado rules of civil procedure, and he or she may file a response in accordance with such rules; except that, upon motion verified by the oath of the party commencing the proceeding or of someone in his or her behalf for an order of publication stating the facts authorizing such service, and showing the efforts, if any, that have been made to obtain personal service within this state, and giving the address or last-known address of each person to be served or stating that his or her address and last-known address are unknown, the court shall hear the motion ex parte and, if satisfied that due diligence has been used to obtain personal service within this state or that efforts to obtain the same would have been to no avail, shall order one publication of a consolidated notice in a newspaper published or having general circulation in the county in which the proceeding is filed, notwithstanding the provisions of article 70 of title 24, C.R.S. A consolidated notice shall be published at least once during a calendar month and shall list the proceedings filed subsequent to those named in the previously published consolidated notice, stating as to each proceeding the names of the parties, the action number, the nature of the action, that a copy of the petition and summons may be obtained from the clerk of the court during regular business hours, and that default judgment may be entered against that party upon whom service is made by such notice if he or she fails to appear or file a response within thirty days after the date of publication. Costs of publication of a consolidated notice may be assessed pro rata to each of the proceedings named in the notice; except that, if a party is indigent or otherwise unable to pay such publication costs, the costs shall be paid by the court from funds appropriated for the purpose. Service shall be complete upon such publication, and a response or appearance by the party served by publication under this subsection (4) shall be made within thirty days thereafter, or default judgment may be entered. No later than the day of publication, the clerk of the court shall also post for thirty consecutive days a copy of the process on a bulletin board in his or her office, and shall mail a copy of the process to the other party at his or her last-known address, and shall place in the file of the proceeding his or her certificate of posting and mailing. Proof of publication of the consolidated notice shall be by placing in the file a copy of the affidavit of publication, certified by the clerk of the court to be a true and correct copy of the original affidavit on file in the clerk's office.
(b) (I) Upon the filing of a petition for dissolution of marriage or legal separation by the petitioner or copetitioner or by a legal guardian or conservator on behalf of one of the parties and upon personal service of the petition and summons on the respondent or upon waiver and acceptance of service by the respondent, a temporary injunction shall be in effect against both parties until the final decree is entered or the petition is dismissed or until further order of the court:
(A) Restraining both parties from transferring, encumbering, concealing, or in any way disposing of, without the consent of the other party or an order of the court, any marital property, except in the usual course of business or for the necessities of life and requiring each party to notify the other party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the injunction is in effect;
(B) Enjoining both parties from molesting or disturbing the peace of the other party;
(C) Restraining both parties from removing the minor child or children of the parties, if any, from the state without the consent of the other party or an order of the court; and
(D) Restraining both parties, without at least fourteen days' advance notification and the written consent of the other party or an order of the court, from canceling, modifying, terminating, or allowing to lapse for nonpayment of premiums, any policy of health insurance, homeowner's or renter's insurance, or automobile insurance that provides coverage to either of the parties or the minor children or any policy of life insurance that names either of the parties or the minor children as a beneficiary.
(II) The provisions of the injunction shall be printed upon the summons and the petition and the injunction shall become an order of the court upon fulfillment of the requirements of subparagraph (I) of this paragraph (b). However, nothing in this paragraph (b) shall preclude either party from applying to the court for further temporary orders, an expanded temporary injunction, or modification or revocation under section 14-10-108.
(4.1) With regard to the automatic, temporary injunction that becomes effective in accordance with paragraph (b) of subsection (4) of this section when a petition for dissolution of marriage or legal separation is filed and served, whenever there is exhibited by the respondent to any duly authorized peace officer, level I, as defined in section 18-1-901, C.R.S., or sheriff a copy of the petition and summons duly filed and issued pursuant to this section, or, in the case of the petitioner, a copy of the petition and summons duly filed and issued pursuant to this section, together with a certified copy of the affidavit of service of process or a certified copy of the waiver and acceptance of service, and the peace officer, level I, as defined in section 18-1-901, C.R.S., or sheriff has cause to believe that a violation of that part of the automatic, temporary injunction which enjoins both parties from molesting the other party has occurred, such peace officer, level I, as defined in section 18-1-901, C.R.S., or sheriff shall use every reasonable means to enforce that part of the injunction against the petitioner or respondent. A peace officer shall not be held civilly or criminally liable for his action pursuant to this subsection (4.1) if his action is in good faith and without malice.
(5) Defenses to divorce and legal separation existing prior to January 1, 1972, including but not limited to condonation, connivance, collusion, recrimination, insanity, and lapse of time, are hereby abolished.
(6) All issues raised by these proceedings shall be resolved by the court sitting without a jury.
Source: L. 71: R&RE, p. 521, § 1. C.R.S. 1963: § 46-1-7. L. 72: p. 296, § 1. L. 83: (4) amended, p. 641, § 1, effective July 1. L. 86: (4.1) added, p. 716, § 1, effective April 29. L. 87: (4.1) amended, p. 1578, § 21, effective July 10. L. 98: (2)(e) amended, p. 1395, § 35, effective February 1, 1999. L. 99: (2)(g) and (4)(b)(I)(D) added and (4)(b)(I)(B), (4)(b)(I)(C), and (4)(b)(II) amended, p. 1059, § § 1, 2, effective June 1; (3), (4)(a), and IP(4)(b)(I) amended, p. 465, § 3, effective July 1. L. 2000: (3) amended, p. 1833, § 7, effective January 1, 2001.
Editor's note: Section 7 of chapter 368, Session Laws of Colorado 2000, provides that the act amending subsection (3) applies to appointments of guardians or conservators on or after January 1, 2001.
Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 196, 200, 243-247, 249, 266, 267, 282-294.
C.J.S. See 27A C.J.S., Divorce, § § 104-110, 120-126, 143-161.
Law reviews. For article, "Expediting Court Procedure", see 10 Dicta 113 (1933). For an article on divorce, see 16 Dicta 107 (1939). For article, "Comments on the Rules of Civil Procedure", see 22 Dicta 154 (1945). For article, "The Doctrine of Recrimination in Divorce Proceedings", see 21 Rocky Mt. L. Rev. 407 (1949). For article, "Forms Committee Presents Standard Pleading Samples to be Used in Divorce Litigation", see 29 Dicta 94 (1952). For article, "One Year Review of Criminal Law and Procedure", see 36 Dicta 34 (1959). For comment on Reed v. Reed, appearing below, see 31 Rocky Mt. L. Rev. 240 (1959). For article, "Legislative Update", see 12 Colo. Law. 1257 (1983). For article, "Recovering the Parentally Kidnapped Child", see 12 Colo. Law. 1798 (1983). For article, "Injunctive Remedies for Interpersonal Violence", see 18 Colo. Law. 1743 (1989).
Annotator's note. Cases relevant to § 14-10-107 decided prior to its earliest source, L. 71, p. 521, § 1, have been included in the annotations to this section.
A court having properly acquired jurisdiction over the subject matter and parties to a divorce action, including minor children, is not at liberty to thereafter divest itself of such jurisdiction to the prejudice of interested parties. Cartier v. Cartier, 94 Colo. 157, 28 P.2d 1010 (1934).
In divorce proceedings, the parties are the husband and wife, and the jurisdiction of the divorce court is exercised as between husband and wife. Ross v. Ross, 89 Colo. 536, 5 P.2d 246 (1931).
There are, in reality, three parties to every divorce action: The plaintiff, the defendant, and the state. Reed v. Reed, 138 Colo. 74, 329 P.2d 633 (1958).
A wife or husband may well be entitled to a divorce, but whether or not she or he will exercise that right is optional with her or him. Faith v. Faith, 128 Colo. 483, 261 P.2d 225 (1953).
The policy of the court should be to discourage, rather than encourage, divorces. Faith v. Faith, 128 Colo. 483, 261 P.2d 225 (1953).
When a plaintiff moves to dismiss a divorce action, it is the duty of a trial court to dismiss the case. McClanahan v. County Court, 136 Colo. 426, 318 P.2d 599 (1957).
The court cannot compel one to take a divorce when he does not desire to have one. Faith v. Faith, 128 Colo. 483, 261 P.2d 225 (1953).
Due process notice and hearing requirements met. The basic requirements of the due process clause of our constitution are that no person be deprived of valuable rights without adequate notice and opportunity for hearing, and the divorce statute does make provision for such notice and hearing before the termination of the marriage. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).
Action for dissolution of marriage is proceeding in rem. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).
Scope of court's jurisdiction over nonresident respondent is established by this section. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).
Service by publication insufficient for jurisdiction in custody issue. Service by publication pursuant to the uniform act is not sufficient to vest a trial court with jurisdiction to resolve a custody issue. In re Blair, 42 Colo. App. 270, 592 P.2d 1354 (1979).
Default judgment would be proper after a member of the armed services entered an appearance and asserted cross claims. Federal Soldiers' and Sailors' Civil Relief Act is to protect members of the military from having default judgments entered against them without their notice of the pendency of the action. It does not prevent entry of such a judgment when there has been notice of the pendency of the action and the member has had adequate time to defend the action. In re Custody of Nugent, 955 P.2d 584 (Colo. App. 1997).
In an action for divorce it is sufficient compliance with the rules of civil procedure if a court makes findings on the material and ultimate facts. Lininger v. Lininger, 138 Colo. 338, 333 P.2d 625 (1958).
Maintenance must be requested in petition. Under the uniform act, maintenance must be requested in the petition for dissolution. In re Boyd, 643 P.2d 804 (Colo. App. 1982).
All the provisions of the code which are applicable shall control in the trial and disposition of divorce cases, except as otherwise provided in the divorce act itself, either expressly or by necessary implication. People ex rel. Lackey v. District Court, 30 Colo. 123, 69 P. 597 (1902); Eickhoff v. Eickhoff, 27 Colo. 380, 61 P. 225 (1900).
The former defense of condonation was in the nature of confession and avoidance. Cochran v. Cochran, 164 Colo. 99, 432 P.2d 752 (1967).
Condoned adultery was not a bar to a divorce, because it was not a ground for divorce. Jones v. Jones, 71 Colo. 420, 207 P. 596 (1922).
If there was any collusion or fraud between the parties, the court would see to it that a decree for divorce is not entered. Reed v. Reed, 138 Colo. 74, 329 P.2d 633 (1958).
Where each party was at fault, a court could not grant relief to either party. Morgan v. Morgan, 139 Colo. 545, 340 P.2d 1060 (1959).
Formerly, the defendant in an action for divorce could set up any matter by way of cross-complaint that would defeat the plaintiff's action. Cupples v. Cupples, 33 Colo. 449, 80 P. 1039 (1905).
It was not necessary, in order to entitle the defendant to set up matters by way of cross-complaint, in bar of the plaintiff's action, that the defendant was seeking a divorce. Cupples v. Cupples, 33 Colo. 449, 80 P. 1039 (1905).
Where a cross-complaint, defective because it omitted a jurisdictional averment so that no divorce could be awarded thereon to the defendant, must have been investigated, and could serve to defeat the action. Cupples v. Cupples, 33 Colo. 449, 80 P. 1039 (1905); Garver v. Garver, 52 Colo. 227, 121 P. 165 (1911).
Decedent's naming of her brother as the payable-on-death beneficiary of her accounts and joint accounts of her and her husband did not amount to an encumbrance of marital property. Estate of Westfall v. Westfall, 942 P.2d 1227 (Colo. App. 1996).
Changing accounts from multi-party to sole accounts before divorce did not affect the other spouse's rights since the accounts remained part of the marital estate and either party had a legal right to deplete the joint accounts. Estate of Westfall v. Westfall, 942 P.2d 1227 (Colo. App. 1996).
It was error to receive a verdict which failed to respond to counter charge of violation of marital duties pleaded in answer. Garver v. Garver, 52 Colo. 227, 121 P. 165 (1911).
Domicile in the state is alone sufficient to bring an absent defendant in a divorce action within the reach of the state's jurisdiction for purposes of a personal judgment by means of appropriate substituted service. In re Petition of Kraudel v. Benner, 148 Colo. 525, 366 P.2d 667 (1961).
Its adequacy so far as due process is concerned is dependent on whether or not the form of substituted service provided for such cases and employed is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard, if it is, the traditional notions of fair play and substantial justice implicit in due process are satisfied. In re Petition of Kraudel v. Benner, 148 Colo. 525, 366 P.2d 667 (1961).
Fraud relative to service by publication operates to void a divorce decree. In re Wilson, 653 P.2d 85 (Colo. App. 1982).
A decree of divorce based upon constructive service is void unless the record shows a strict compliance with all the statutory requirements. Roberts v. Roberts, 3 Colo. App. 6, 31 P. 941 (1892).
The record must show a compliance with the statute respecting the mailing of a copy of the summons to the defendant to justify the entry of a judgment. Roberts v. Roberts, 3 Colo. App. 6, 31 P. 941 (1892).
Parol proof that the defendant had actual knowledge of the pendency of the action was not considered on the hearing of his motion to set aside the judgment, because of the failure to mail him a copy of the summons, as required by law. Roberts v. Roberts, 3 Colo. App. 6, 31 P. 941 (1892).
Where upon a service of a summons in a divorce suit in which the defendant, if served within the county in which the action was pending, was required to appear and answer the complaint within 20 days thereafter, the court was not authorized to proceed to a judgment if defendant failed to comply with such command, for it was in direct conflict with the mandatory provision which gives a defendant 30 days to appear and answer in such circumstances. Mottschall v. Mottschall, 31 Colo. 260, 72 P. 1053 (1903).
Where plaintiff had removed her child to a foreign country, a motion by her attorney for leave to withdraw as her counsel was properly denied, since such withdrawal would make service of process impossible and deprive the trial court of authority to make proper orders. Holland v. Holland, 150 Colo. 442, 373 P.2d 523 (1962).
Failure to allege 90-day residency immediately prior to proceeding not fatal. This section does not require that a petition for dissolution of marriage contain an allegation that the residency period includes the 90 days immediately prior to the commencement of the proceeding, and petitioner's failure to make her allegation in the words of section 14-10-106 was not a fatal defect. In re Alper, 33 Colo. App. 225, 517 P.2d 404 (1973).
Theory of mutual mistake not waived by failure to raise issue in reply to petition. In a dispute over a separation agreement, a theory of mutual mistake is not waived by failure to raise the issue in the reply to the petition for dissolution of marriage, since no reply is required and averments in a pleading to which no responsive pleading is required shall be taken as denied or avoided. In re Deines, 44 Colo. App. 98, 608 P.2d 375 (1980).
Withdrawal of marital property after dissolution proceeding commenced. In determining the total value of the marital property, trial court did not err in including the $45,000 husband, had withdrawn from the fund after the dissolution proceeding had commenced since husband, who had not obtained an order of the court or consent of his wife before using the money, failed to show that the withdrawal was done either in the usual course of business or was for the necessities of life. In re Meisner, 715 P.2d 1273 (Colo. App. 1985).
Trial court properly credited husband with the amount of funds existing prior to wife's sale of stock shares when wife cashed out shares after entry of the automatic temporary injunction. Wife's argument that the parties routinely cashed out shares to meet living expenses was rejected by the court as a rationale for not including the amount she cashed out in the division of marital shares, since the prior sales of stock took place inconsistently and was not used as income on a monthly basis. In re Huston, 967 P.2d 181 (Colo. App. 1998).
(1) The attorney for the county department of social services may file an entry of appearance on behalf of the department in any proceeding for dissolution of marriage or legal separation under this article for purposes of establishing, modifying, and enforcing child support and medical support of a child on whose behalf the custodian of said child is receiving support enforcement services pursuant to section 26-13-106, C.R.S., and for purposes of establishing and enforcing reimbursement of payments for aid to families with dependent children.
(2) The county department of social services, upon the filing of the entry of appearance described in subsection (1) of this section or upon the filing of a legal pleading to establish, modify, or enforce the support obligation, shall be from that date forward, without leave or order of court, a third-party intervenor in the action for the purposes outlined in subsection (1) of this section without the necessity of filing a motion to intervene.
Source: L. 89: Entire section added, p. 792, § 13, effective July 1. L. 90: Entire section amended, p. 889, § 8, effective July 1.
When filing a petition for dissolution of marriage or legal separation, a petition in support or proceedings for the allocation of parental responsibilities with respect to the children of the marriage, or any other matter pursuant to this article with the court, if the parties have joint legal responsibility for a child for whom the petition seeks an order of child support, the parties shall be required to indicate on a form prepared by the court whether or not the parties or the dependent children of the parties have received within the last five years or are currently receiving benefits or public assistance from either the state department of human services or county department of social services. If the parties indicate that they have received such benefits or assistance, the court shall inform the appropriate delegate child support enforcement unit so that the unit can determine whether any support enforcement services are required. There shall be no penalty for failure to report as specified in this section.
Source: L. 92: Entire section added, p. 202, § 8, effective August 1. L. 93: Entire section amended, p. 1558, § 6, effective September 1. L. 94: Entire section amended, p. 2644, § 106, effective July 1. L. 98: Entire section amended, p. 1396, § 36, effective February 1, 1999.
Cross references: For the legislative declaration contained in the 1994 act amending this section, see section 1 of chapter 345, Session Laws of Colorado 1994.
(1) When filing a petition for dissolution of marriage or legal separation pursuant to this article, the filing party shall have a duty to disclose to the court the existence of any prior temporary or permanent restraining orders and civil protection orders to prevent domestic abuse issued pursuant to article 14 of title 13, C.R.S., any mandatory restraining order and protection orders issued pursuant to section 18-1-1001, C.R.S., and any emergency protection orders issued pursuant to section 13-14-103, C.R.S., entered against either party by any court within two years prior to the filing of the petition of dissolution of marriage or legal separation. The disclosure required pursuant to this section shall address the subject matter of the previous restraining, civil protection, or emergency protection orders, including the case number and jurisdiction issuing such orders.
(2) After the filing of the petition, the court shall advise the parties concerning domestic violence services and potential financial resources that may be available and shall strongly encourage the parties to obtain such services for their children, in appropriate cases. If the parties' children participate in such services, the court shall apportion the costs of such services between the parties as it deems appropriate.
(3) The parties to a domestic relations petition filed pursuant to this article shall receive information concerning domestic violence services and potential financial resources that may be available.
Source: L. 95: Entire section added, p. 83, § 1, effective July 1. L. 99: Entire section amended, p. 502, § 9, effective July 1. L. 2001: Entire section amended, p. 978, § 1, effective August 8. L. 2004: (1) amended, p. 554, § 10, effective July 1. L. 2005: (1) amended, p. 764, § 22, effective June 1.
(1) In a proceeding for dissolution of marriage, legal separation, the allocation of parental responsibilities, or declaration of invalidity of marriage or a proceeding for disposition of property, maintenance, or support following dissolution of the marriage, either party may move for temporary payment of debts, use of property, maintenance, parental responsibilities, support of a child of the marriage entitled to support, or payment of attorney fees. The motion may be supported by an affidavit setting forth the factual basis for the motion and the amounts requested.
(1.5) The court may consider the allocation of parental responsibilities in accordance with the best interests of the child, with particular reference to the factors specified in section 14-10-124 (1.5).
(2) As a part of a motion of such temporary orders or by an independent motion accompanied by an affidavit, either party may request the court to issue a temporary order:
(a) Restraining any party from transferring, encumbering, concealing, or in any way disposing of any property, except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the order is issued;
(b) Enjoining a party from molesting or disturbing the peace of the other party or of any child;
(c) Excluding a party from the family home or from the home of the other party upon a showing that physical or emotional harm would otherwise result.
(2.3) (Deleted by amendment, L. 2004, p. 553, § 4, effective July 1, 2004.)
(2.5) (Deleted by amendment, L. 2004, p. 553, § 4, effective July 1, 2004.)
(3) A party to an action filed pursuant to this article may seek, and the court may issue, a temporary or permanent protection order pursuant to the provisions of section 13-14-102, C.R.S.
(4) (Deleted by amendment, L. 2004, p. 553, § 4, effective July 1, 2004.)
(5) A temporary order or temporary injunction:
(a) Does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;
(b) May be revoked or modified prior to final decree on a showing by affidavit of the facts necessary to revocation or modification of a final decree under section 14-10-122; and
(c) Terminates when the final decree is entered, unless continued by the court for good cause to a date certain, or when the petition for dissolution or legal separation is voluntarily dismissed.
(6) (Deleted by amendment, L. 2004, p. 553, § 4, effective July 1, 2004.)
(7) At the time a protection order is requested pursuant to section 13-14-102, C.R.S., the court shall inquire about, and the requesting party and such party's attorney shall have an independent duty to disclose, knowledge such party and such party's attorney may have concerning the existence of any prior protection orders or restraining orders of any court addressing in whole or in part the subject matter of the requested protection order.
Source: L. 71: R&RE, p. 522, § 1. C.R.S. 1963: § 46-1-8. L. 73: pp. 553, 555, § § 3, 12. L. 81: (6) added, p. 903, § 1, effective May 13. L. 83: (1) amended, p. 644, § 1, effective April 26; (1.5) added, p. 645, § 1, effective June 10. L. 87: (1.5) amended, p. 575, § 4, effective July 1. L. 94: (2.5) and (7) added and (3) amended, p. 2008, § 4, effective January 1, 1995. L. 98: (2.3) added and (3) amended, p. 245, § 4, effective April 13; (1) and (2.5) amended, p. 1396, § 37, effective February 1, 1999. L. 99: (2.3) amended, p. 501, § 4, effective July 1. L. 2000: (1.5) amended, p. 1844, § 24, effective August 2. L. 2003: (2.3), (2.5), (3), (6), and (7) amended, p. 1010, § 14, effective July 1. L. 2004: IP(2), (2.3), (2.5), (3), (4), (6), and (7) amended, p. 553, § 4, effective July 1.
Editor's note: Subsection (1.5) was contained in a 2000 act that was passed without a safety clause. For further explanation concerning the effective date, see page vii of this volume.
Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 652-656, 1047-1050.
C.J.S. See 27A C.J.S., Divorce, § § 315-342.
Law reviews. For article, "Legislative Update", see 12 Colo. Law. 1257 (1983).
Annotator's note. Since § 14-10-108 is similar to repealed § 46-1-5, C.R.S. 1963, § 46-1-5, CRS 53, CSA, C. 56, § 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
The general rule is that courts of equity should and will in a proper case enjoin a party to a divorce or separate maintenance action from proceeding in an annulment suit in a foreign jurisdiction. Hayutin v. Hayutin, 152 Colo. 261, 381 P.2d 272 (1963).
Evidence of extreme circumstances necessitating sale of co-owned property. If there is evidence of extreme circumstances that co-owned property needs to be sold to preserve equities therein, a court may decree a sale of the property prior to a final determination of the merits of the dissolution action. In re Gavend, 781 P.2d 161 (Colo. App. 1989).
Best interest standard, and not the endangerment standard, was properly applied to award father residential care despite mother's award of temporary custody, where awarding father residential custody of the children was not abuse of discretion and record supported findings. In re Monteil, 960 P.2d 717 (Colo. App. 1998).
Applied in In re Westlake, 674 P.2d 1386 (Colo. App. 1983).
Law reviews. For article, "Attorney Fees at Temporary Orders: Reality or Illusion?", see 24 Colo. Law. 2185 (1995).
An order granting a temporary change of custody following an ex parte hearing with no notice to the mother denied her due process where no evidence was presented and no finding was made that irreparable injury would result if no order were issued until the time for responding had elapsed. Olson v. Priest, 193 Colo. 222, 564 P.2d 122 (1977).
Court lost jurisdiction to enforce order. When an order dismissing a marriage dissolution action was signed, the court was divested of any further jurisdiction in that action and had no jurisdiction to hold husband in contempt for failing to pay support required by temporary order which was entered in that action. Hill v. District Court, 189 Colo. 356, 540 P.2d 1079 (1975).
The purpose of temporary alimony is to allow a wife to live in her accustomed manner during pendency of the action and to provide her with means to properly litigate the controversy, and is not definitive of her entitlement to support under permanent orders. MacReynolds v. MacReynolds, 29 Colo. App. 267, 482 P.2d 407 (1971); Bieler v. Bieler, 130 Colo. 17, 272 P.2d 636 (1954).
If she possesses independent means sufficient for these purposes the allowances should not be granted; however, she is not required first to impair the capital of her separate estate. Bieler v. Bieler, 130 Colo. 17, 272 P.2d 636 (1954).
The allowance of temporary alimony is dependent upon the existence of the marriage relation, and all necessary facts to establish such relation must be made to appear at least prima facie before such allowance is made by the court, but where a prima facie case is established alimony should be awarded. Eickhoff v. Eickhoff, 29 Colo. 295, 68 P. 237 (1902).
In an action for divorce where it is clear upon the admitted facts that the marriage alleged in the complaint is void in law, or where the preponderance of the evidence tends to show that there was never a marriage in fact, temporary alimony should not be awarded, and if awarded will be set aside on review. Eickhoff v. Eickhoff, 29 Colo. 295, 68 P. 237 (1902).
It appears that in a divorce proceeding, the right to apply for alimony pendente lite is dependent upon the previous filing of a complaint for a divorce, and then the application may be made to, and acted upon, by the court in term time, or by the judge in vacation. Eickhoff v. Eickhoff, 14 Colo. App. 127, 59 P. 411 (1899).
The allowance to be made for temporary alimony, attorney fees, and suit money is within the sound discretion of the trial court, and unless that discretion has been abused the order of allowance will not be disturbed on review. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926); Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902).
In a divorce suit where the wife was in indigent circumstances and the husband was a man of large means, an allowance of $50 per month as temporary alimony, $250 attorney fees, and $25 suit money was not excessive, and was not an abuse of discretion by the trial court. Eickhoff v. Eickhoff, 29 Colo. 295, 68 P. 237 (1902).
In determining the amount of temporary alimony to be allowed, the ability of the husband is an element to be considered, and the same element must necessarily be taken into consideration in fixing the amount of permanent alimony. Fahey v. Fahey, 43 Colo. 354, 96 P. 251 (1908).
If the evidence as to the ability of the husband to pay temporary alimony in a divorce action is conflicting, the order of the trial court based thereon is not reviewable. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).
An award of temporary alimony may be modified by the supreme court. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).
No appeal from temporary orders that have terminated due to entry of permanent orders. In re Jaeger, 883 P.2d 577 (Colo. App. 1994).
Temporary alimony awarded a wife cannot be modified except upon motion and sufficient showing in support thereof; thus, where no motion was made respecting the alimony, it was an abuse of discretion for the court to suspend the order for temporary alimony at a hearing on a citation for the husband to show cause why he was not in contempt of court for failure to pay alimony Wright v. Wright, 122 Colo. 179, 220 P.2d 881 (1950).
The question whether an order for temporary alimony should be modified is also within the discretion of the court. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).
Orders resolving child support issue are final. In dissolution proceedings, orders which resolve the issue of child support, even on a temporary basis, are final for purposes of review. In re Henne, 620 P.2d 62 (Colo. App. 1980).
"Final decree", as used in subsection 14-10-108 (5)(c), is not limited to a final decree of dissolution, but may also include a final order concerning child support. In re Price, 727 P.2d 1073 (Colo. 1986); In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev' d on other grounds, 974 P.2d 493 (Colo. 1999).
Where court continued determination of permanent child support to time subsequent to entry of decree of dissolution, temporary child support order was not terminated on date of dissolution by virtue of statute terminating temporary order or temporary injunction when final decree is entered. In re Price, 727 P.2d. 1073 (Colo. 1986).
Temporary orders as to maintenance are reviewable as a final judgment even if there has not been a final judgment in the form of a decree of dissolution. In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev' d on other grounds, 974 P.2d 493 (Colo. 1999).
If the decree of dissolution leaves the issue of maintenance to be resolved later, an order of temporary maintenance is not terminated on the date of dissolution by virtue of subsection (5)(c). When possible, however, at the time the decree is entered, the court should set a definite date for consideration of permanent orders concerning maintenance. In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev' d on other grounds, 974 P.2d 493 (Colo. 1999).
A request for a temporary award includes attorney fees and related litigation expenses. In re Mockelmann, 944 P.2d 670 (Colo. App. 1997).
An award of attorney fees is a final judgment subject to appellate review as it establishes a financial right and obligation of the parties until the entry of permanent orders. A temporary award of attorney fees is based upon the same underlying premise as a temporary award of maintenance or child support in that it concerns the immediate financial need of the party to whom the attorney fees are awarded. In re Mockelmann, 944 P.2d 670 (Colo. App. 1997).
The duty to pay maintenance is independent and is not limited or specifically tied to the entry of a decree of dissolution. To allow a party to terminate his or her maintenance payments when a decree of dissolution is entered that is mute on the issue of maintenance would disturb the status quo, frustrate a central purpose of the statute, and allow evasion of an important stabilizing aspect of the dissolution process. In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev' d on other grounds, 974 P.2d 493 (Colo. 1999).
Where a husband, plaintiff in a divorce suit, is unable to make reasonable provision for his wife during the pendency of the suit, the suit should be abated until he is able to do so. Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902).
Where a wife, defendant in a divorce suit, is a nonresident of the state and desires to come to Colorado to defend the suit, she should be given an opportunity to do so and the plaintiff should be required to deposit in court a sufficient sum to pay to the state the expenses of the wife which shall be paid to her upon her arrival, within a reasonable time, with such additional sum as may be necessary to properly defend the suit. Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902).
Where a trial court denies motions of both parties with respect to temporary alimony pending trial on the merits, a writ of error to review such action is premature. Hizel v. Hizel, 132 Colo. 379, 288 P.2d 354 (1955).
Since temporary orders are not in any way res judicata as to matters properly the subject of permanent order, a showing of change of circumstances is not an essential element for the trial court's consideration in its establishment of permanent alimony. MacReynolds v. MacReynolds, 29 Colo. App. 267, 482 P.2d 407 (1971).
There is no enforceable temporary order where the claim for spousal maintenance is based on a referee's recommendation and where the transcript is not signed and no separate order of the court is entered. In re Burke, 680 P.2d 1338 (Colo. App. 1984).
Formerly, an execution was authorized on an order for temporary alimony. Paul v. Marty, 72 Colo. 399, 211 P. 667 (1922); Daniels v. Daniels, 9 Colo. 133, 10 P. 657 (1886).
Restraining orders should not be issued in divorce actions except in circumstances of actual emergency, and where it is clearly established that grounds exist for granting such extraordinary remedy. Simpson v. Simpson, 151 Colo. 88, 376 P.2d 55 (1962).
It is an unusual situation in which an order on one spouse to refrain from transferring property is inadequate to afford needed protection to the other who seeks to maintain the status quo pending a hearing on notice. Simpson v. Simpson, 151 Colo. 88, 376 P.2d 55 (1962).
The right of the husband in a divorce action to manage his property and carry on his business in due course is fundamental and should not be interfered with or suspended by the issuance of ex parte restraining orders without notice upon persons with whom he transacts business, except upon a clear showing of emergency and a need therefor. Simpson v. Simpson, 151 Colo. 88, 376 P.2d 55 (1962).
The practice of bringing in third parties as defendants in a divorce action and issuing restraining orders against them without notice is not to be encouraged, it being only under extraordinary circumstances that such persons engaged in legitimate business transactions with one of the parties to the divorce action and not involved in their marital difficulties may be restrained or enjoined from continuing business activities with one of the spouses involved. Simpson v. Simpson, 151 Colo. 88, 376 P.2d 55 (1962).
Any reasons justifying permanent injunctive relief in dissolution of marriage proceeding must arise from factors independent of those with which the trial court is empowered to deal in a dissolution proceeding. In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980).
The duties of peace officers enforcing orders issued pursuant to section 14-10-107 or 14-10-108 shall be in accordance with section 18-6-803.5, C.R.S., and any rules adopted by the Colorado supreme court pursuant to said section.
Source: L. 71: R&RE, p. 523, § 1. C.R.S. 1963: § 46-1-9. L. 92: Entire section amended, p. 176, § 2, effective July 1. L. 94: Entire section amended, p. 2009, § 5, effective January 1, 1995.
Cross references: For civil contempt, see Rule 107, C.R.C.P.
Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 295-300.
(1) If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken or one of the parties has so stated and the other has not denied it, there is a presumption of such fact, and, unless controverted by evidence, the court shall, after hearing, make a finding that the marriage is irretrievably broken.
(2) If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation, and shall:
(a) Make a finding whether the marriage is irretrievably broken; or
(b) Continue the matter for further hearing not less than thirty days nor more than sixty days later, or as soon thereafter as the matter may be reached on the court's calendar, and may suggest to the parties that they seek counseling. At the adjourned hearing, the court shall make a finding whether the marriage is irretrievably broken.
Source: L. 71: R&RE, p. 523, § 1. C.R.S. 1963: § 46-1-10.
Cross references: For marriage counseling, see article 12 of this title.
Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 343, 354, 355, 382, 383.
C.J.S. See 27A C.J.S., Divorce, § § 13-15, 18, 163.
Law reviews. For article, "Is Residence of the Plaintiff, in Colorado, Necessary to Support a Divorce Action Based on Cruelty Within the State, If Defendant Is a Resident of Colorado?", see 24 Dicta 110 (1947). For article, "When the State Had an Interest in Marriage: Colorado's Divorce Acts, 1861-1917", see 16 Colo. Law. 1627 (1987).
Annotator's note. Some of the cases appearing under § 14-10-110 were decided under repealed § 46-1-1, C.R.S. 1963, § 46-1-1, CRS 53, CSA, C. 56, § 1, and laws antecedent thereto, which specifically enumerated the grounds for divorce.
Marriage is a contract between the parties, but it is distinguishable from the ordinary civil contract. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).
Marriage is the subject of a more immediate interest to the state than is the ordinary contract. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).
Marriage is not a "contract" within the meaning of the contract clause of the constitution. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).
General assembly control of marriage is constitutional. Since marriage is not a contract within the meaning of the constitutional contract clause, the general assembly has broad control over it, the reasonable exercise of which will not run afoul of the constitutional protection of contracts. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).
In attempting to increase availability of divorces to estranged spouses, the general assembly recognized that public policy does not encourage keeping two people together once the legitimate objects of matrimony have ceased to exist. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).
Decree not automatic. Although the dissolution of marriage statute was intended as a "no-fault" divorce act, the actual granting of the decree is not automatic or perfunctory under all circumstances. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).
Court's discretion to continue case sufficient safeguard against hastiness. The general assembly declined to include in the Colorado act, which is modeled on the uniform dissolution of marriage act, the language of the uniform act allowing the court to order a conciliation conference, and thus, in effect, determined that vesting discretion in the court to continue the case from 30 to 60 days was sufficient safeguard against hasty and insensate decisions. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).
"Irretrievable" breakdown is no more vague or incapable of definition than "became impotent through immoral conduct", has been "extremely and repeatedly cruel", or being an "habitual drunkard", all of which constituted, under the prior Colorado statute, grounds for divorce. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).
A finding of irretrievable breakdown is one of fact and, where the allegation of the petition is denied, it must be proven as any other essential element of the cause of action. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).
Where the parties do not agree as to the breakdown of the marriage, it is imperative for the court to weigh all the evidence and make its own independent determination of that fact. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).
The issue of whether a marriage has been irretrievably broken is a question of fact to be resolved upon consideration of the facts and circumstances of each case, and the factors underlying that determination will necessarily vary from case to case. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).
Finding of irretrievable breakdown must be proved when denied. While the dissolution of marriage act did eliminate all the former defenses to divorce in this state, it did not eliminate the necessity of proving an irretrievable breakdown where that basic allegation is denied in the pleadings. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).
No requirement that valid goals of marriage must be unattainable. There is no requirement that for the marriage to be beyond redemption, substantial proportion of legitimate objectives of a marriage must be no longer attainable by the parties. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).
Elucidating valid goals of marriage which must be either lost or beyond accomplishment before the marriage can be classified as irretrievably broken would constitute an amendment to the act, and that power is reserved exclusively for the general assembly. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).
The parentage of a child is not an issue in a divorce or annulment action between the parents. Devereaux v. Devereaux, 144 Colo. 31, 354 P.2d 1015 (1960).
Formerly, before a court could enter its findings in favor of a defendant, it must have necessarily found that the defendant had not been guilty of a violation of the marriage contract. Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958).
In a divorce action where a defendant pleaded grounds for divorce by way of counterclaim, the issue was the guilt or innocence of the parties on the grounds alleged against each other, and findings by a trial court that plaintiff was entitled to a divorce was necessarily a finding against the defendant on the issues. Schleiger v. Schleiger, 137 Colo. 279 324 P.2d 370 (1958).
Formerly, the grounds for divorce in this state were purely statutory. Pleyte v. Pleyte, 1 Colo. App. 70, 28 P. 23 (1891); Redington v. Redington, 2 Colo. App. 8, 29 P. 811 (1892); Githens v. Githens, 78 Colo. 102, 239 P. 1023 (1925).
For the former ground for divorce, adultery, see Redington v. Redington, 2 Colo. App. 8, 29 P. 811 (1892); Harding v. Harding, 36 Colo. 106, 85 P. 423 (1906); Jones v. Jones, 71 Colo. 420, 207 P. 596 (1922).
For the former ground for divorce, desertion, see Stein v. Stein, 5 Colo. 55 (1879); Calvert v. Calvert, 15 Colo. 390, 24 P. 1043 (1890); Johnson v. Johnson, 22 Colo. 20, 43 P. 130, 55 Am. St. R. 113 (1895); Hobbs v. Hobbs, 72 Colo. 190, 210 P. 398 (1922); Oates v. Oates, 72 Colo. 195, 210 P. 325 (1922); Mulhollen v. Mulhollen, 145 Colo. 479, 358 P.2d 887 (1961).
For the former ground for divorce, cruelty, see Sylvis v. Sylvis, 11 Colo. 319, 17 P. 912 (1888); Gilpin v. Gilpin, 12 Colo. 504, 21 P. 612 (1889); Williams v. Williams, 1 Colo. App. 281, 28 P. 726 (1892); Geisseman v. Geisseman, 34 Colo. 481, 83 P. 635 (1905); Harding v. Harding, 36 Colo. 106, 85 P. 423 (1906); Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488 (1911); Shaff v. Shaff, 72 Colo. 184, 210 P. 400 (1922); Miller v. Miller, 90 Colo. 428, 9 P.2d 616 (1932); Hilburger v. Hilburger, 110 Colo. 409, 135 P.2d 138 (1943); Harms v. Harms, 120 Colo. 212, 209 P.2d 552 (1949); Mentzer v. Mentzer, 120 Colo. 412, 209 P.2d 920 (1949); Carroll v. Carroll, 135 Colo. 379, 311 P.2d 709 (1957); Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958); Reed v. Reed, 138 Colo. 74, 329 P.2d 633 (1958); Lininger v. Lininger, 138 Colo. 338, 333 P.2d 625 (1958); Poos v. Poos, 145 Colo. 334, 359 P.2d 3 (1961); Harvey v. Harvey, 150 Colo. 449, 373 P.2d 304 (1962); Cochran v. Cochran, 164 Colo. 99, 432 P.2d 752 (1967); Moats v. Moats, 168 Colo. 120, 450 P.2d 64 (1969).
For the former ground for divorce, nonsupport by the husband, see Rogers v. Rogers, 57 Colo. 132, 140 P. 193 (1914).
Applied in In re Erickson, 43 Colo. App. 319, 602 P.2d 909 (1979); In re Lester, 647 P.2d 688 (Colo. App. 1982).
(1) The district court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:
(a) A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances.
(b) A party lacked the physical capacity to consummate the marriage by sexual intercourse, and the other party did not at the time the marriage was solemnized know of the incapacity.
(c) A party was under the age as provided by law and did not have the consent of his parents or guardian or judicial approval as provided by law.
(d) One party entered into the marriage in reliance upon a fraudulent act or representation of the other party, which fraudulent act or representation goes to the essence of the marriage.
(e) One or both parties entered into the marriage under duress exercised by the other party or a third party, whether or not such other party knew of such exercise of duress.
(f) One or both parties entered into the marriage as a jest or dare.
(g) The marriage is prohibited by law, including the following:
(I) A marriage entered into prior to the dissolution of an earlier marriage of one of the parties;
(II) A marriage between an ancestor and a descendant or between a brother and a sister, whether the relationship is by the half or the whole blood;
(III) A marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs of aboriginal cultures;
(IV) A marriage which was void by the law of the place where such marriage was contracted.
(2) A declaration of invalidity under subsection (1) of this section may be sought by any of the following persons and shall be commenced within the times specified, but in no event may a declaration of invalidity be sought after the death of either party to the marriage, except as provided in subsection (3) of this section:
(a) For the reasons set forth in either subsection (1) (a), (1) (d), (1) (e), or (1) (f) of this section, by either party to the marriage who was aggrieved by the conditions or by the legal representative of the party who lacked capacity to consent no later than six months after the petitioner obtained knowledge of the described condition;
(b) For the reason set forth in subsection (1) (b) of this section, by either party no later than one year after the petitioner obtained knowledge of the described condition;
(c) For the reason set forth in subsection (1) (c) of this section, by the underaged party, his parent, or his guardian, if such action for declaration of invalidity of marriage is commenced within twenty-four months of the date the marriage was entered into.
(3) A declaration of invalidity, for the reason set forth in subsection (1) (g) of this section, may be sought by either party; by the legal spouse in case of bigamous, polygamous, or incestuous marriages; by the appropriate state official; or by a child of either party at any time prior to the death of either party or prior to the final settlement of the estate of either party and the discharge of the personal representative, executor, or administrator of the estate or prior to six months after an estate is closed under section 15-12-1204, C.R.S.
(4) Children born of a marriage declared invalid are legitimate.
(5) Marriages declared invalid under this section shall be so declared as of the date of the marriage.
(6) The provisions of this article relating to the property rights of spouses, maintenance, and support of and the allocation of parental responsibilities with respect to the children on dissolution of marriage are applicable to decrees of invalidity of marriage.
(7) No decree shall be entered unless one of the parties has been domiciled in this state for thirty days next preceding the commencement of the proceeding or unless the marriage has been contracted in this state.
Source: L. 71: R&RE, p. 523, § 1. C.R.S. 1963: § 46-1-11. L. 73: pp. 553, 1647, § § 4, 5, 6. L. 80: (1)(g)(II) amended, p. 794, § 47, effective June 5. L. 98: (6) amended, p. 1397, § 38, effective February 1, 1999.
Cross references: For the effect of a declaration of invalidity on marital agreements, see § 14-2-308.
Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 3, 120, 121; 52 Am. Jur.2d, Marriage, § § 14, 17, 20, 21, 23, 26, 30-32, 62, 63, 66.
C.J.S. See 55 C.J.S., Marriage, § § 9-49, 63-68, 83.
Law reviews. For article, "Ten Years of Domestic Relations in Colorado -- 1940-1950", see 27 Dicta 399 (1950). For note, "The Presumption of Death and a Second Marriage", see 27 Dicta 414 (1950). For article, "A Decade of Colorado Law: Conflict of Laws, Security, Contracts and Equity", see 23 Rocky Mt. L. Rev. 247 (1951). For note, "Jurisdiction to Annul a Marriage Celebrated Without the Forum", see 26 Rocky Mt. L. Rev. 57 (1953). For article, "One Year Review of Domestic Relations", see 35 Dicta 36 (1958). For article, "Choice of the Applicable Law in Colorado", see 35 Dicta 162 (1958). For article, "One Year Review of Domestic Relations", see 39 Dicta 102 (1962). For article, "The Incestuous Marriage -- Relic of the Past", see 36 U. Colo. L. Rev. 473 (1964). For article, "Due Process in Involuntary Civil Commitment and Incompetency Adjudication Proceedings: Where Does Colorado Stand?", see 46 Den. L.J. 516 (1969).
Annotator's note. Since § 14-10-111 is similar to repealed § 46-3-1 et seq., CRS 53, and CSA, C. 56, § § 33 through 38, relevant cases construing those provisions have been included in the annotations to this section.
There is a wide distinction between a conventional annulment proceeding and a conventional action for divorce. An annulment proceeding is one in which the validity of a marriage is challenged from its inception on the ground that one or both of the parties was underage, on the ground that one or both of the parties was married to another person, on the ground that the proceeding was attended by fraud, or on some other fairly comparable ground. An action for divorce is one in which termination is sought of a valid marriage. Gainey v. Fleming, 279 F.2d 56 (10th Cir. 1960).
For the effect of an invalidity of marriage determination on maintenance payments which were terminated upon remarriage, see Torgan v. Torgan, 159 Colo. 93, 410 P.2d 167 (1966).
Reestablishment of a support obligation following annulment of a subsequent marriage must be decided on a case-by-case basis, taking into account the facts and equities of the particular case. In re Cargill and Rollins, 843 P.2d 1335 (Colo. 1993).
The children of the deceased had no standing to challenge the validity of his marriage when it was not prohibited. Matter of Estate of Fuller, 862 P.2d 1037 (Colo. App. 1993).
Applied in In re Heinzman, 198 Colo. 36, 596 P.2d 61 (1979).
Originally, authority to grant divorces and annul marriages in England was vested solely in the ecclesiastical courts. This authority terminated around 1870, during the reign of Victoria, at which time a special court was created to hear and decide all divorces and annulments of marriage, but ecclesiastical courts and their authority never became a part of American common law. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
An annulment action is a statutory proceeding in which the court exercises equity powers. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
The severance of marital ties, the entry of custodial orders regarding children, the application of equitable principles in divorce and annulment actions, and so forth, are or have aspects of the conventional activities of a court of equity. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
This article provides that in suits for annulment the practice and proceedings shall be in accordance with the rules of civil procedure. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
In the interplay of this section and the rules of civil procedure, there is no trial by jury of an annulment suit as a matter of right. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
A cursory reading of C.R.C.P. 38(a) makes obvious the conclusion that an annulment suit does not come within the meaning of any of the enumerated actions requiring trial by jury unless waived. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
But C.R.C.P. 39(c) provides that in actions not triable by a jury, the court may upon motion or of its own initiative try any issue with an advisory jury, or when statute provides for trial without a jury, the court with the consent of both parties may order a jury trial. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
Proof in an annulment case must be clear and convincing, and the court should so instruct the jury, and the preponderance rule is inapplicable. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
The giving of confusing and incompatible instructions in an annulment action is fatal error. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
Marriages are not easily annulled, and consequently, there must be clear and convincing proof that such party was mentally incompetent at the time the marriage was entered into. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
An instruction "that the husband would be incapable of giving voluntary consent if you find that at the time of the marriage ceremony he did not have sufficient mental capacity to understand the nature, obligations, and responsibilities of a marriage contract, and to appreciate the solemnity of the marriage vows" goes beyond the statutory ground for annulment which provides that if "one or both parties were mentally incapable of giving voluntary consent to the marriage", the marriage may be set aside. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
In an action for annulment of a marriage on the ground of mental incapacity, testimony of a witness to marriage ceremony that she observed plaintiff before, during, and after ceremony, conversed with him, and that in her opinion he was mentally competent, was erroneously rejected, the credibility of such witness being for the jury. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
Testimony of a psychiatrist who based his opinion on the incompetency of plaintiff, and in part upon the testimony of another witness, was erroneously admitted. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
An order of adjudication of mental incompetency was properly admitted. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
Evidence of forgery of a blood test certificate was immaterial and inadmissible, as not tending to prove any of the alleged grounds of annulment. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
Evidence that wife had applied for driver's license and signed a delinquency tax statement in former name, subsequent to the alleged marriage, were remote circumstances having no legitimate bearing on the issues and should have been rejected. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).
A judgment and decree annulling the marriage of the parents does not determine the parentage of a child conceived prior to the marriage, and is not res judicata in a dependency proceeding to determine the paternity of the child. Devereaux v. Devereaux, 144 Colo. 31, 354 P.2d 1015 (1960).
The parentage of a child is not an issue in an annulment action between the parents. Devereaux v. Devereaux, 144 Colo. 31, 354 P.2d 1015 (1960).
Subsection (4) refers only to cases where an annulment proceeding is brought. Valdez v. Shaw, 100 Colo. 101, 66 P.2d 325 (1937); Gainey v. Fleming, 279 F.2d 56 (10th Cir. 1960).
Marriages being lawful in other states are recognized as lawful and valid in the state of Colorado. Spencer v. People in Interest of Spencer, 133 Colo. 196, 292 P.2d 971 (1956).
It is the public policy of this state concerning foreign marriages that such marriages are valid if valid where performed. Spencer v. People in Interest of Spencer, 133 Colo. 196, 292 P.2d 971 (1956).
In an action for annulment, the marriage is held to be valid or void, according to the statutes in force and effect in the jurisdiction where the same was entered into, and if, according to these statutes, it is found to be valid, it must be so considered in this jurisdiction. Payne v. Payne, 121 Colo. 212, 214 P.2d 495 (1950).
(1) To promote the amicable settlement of disputes between the parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the allocation of parental responsibilities, support, and parenting time of their children.
(2) In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except terms providing for the allocation of parental responsibilities, support, and parenting time of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.
(3) If the court finds the separation agreement unconscionable, the court may request the parties to submit a revised separation agreement, or the court may make orders for the disposition of property, support, and maintenance.
(4) If the court finds that the separation agreement is not unconscionable as to support, maintenance, and property:
(a) Unless the separation agreement provides to the contrary, its terms shall be set forth in the decree of dissolution or legal separation, and the parties shall be ordered to perform them; or
(b) If the separation agreement provides that its terms shall not be set forth in the decree, the decree shall identify the separation agreement and shall state that the court has found the terms not unconscionable.
(5) Terms of the agreement set forth in the decree may be enforced by all remedies available for the enforcement of a judgment, including contempt, but are no longer enforceable as contract terms.
(6) Except for terms concerning the support, the allocation of decision-making responsibility, or parenting time of children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides.
Source: L. 71: R&RE, p. 525, § 1. C.R.S. 1963: § 46-1-12. L. 93: (1), (2), and (6) amended, p. 576, § 6, effective July 1. L. 98: (1), (2), and (6) amended, p. 1397, § 39, effective February 1, 1999.
Cross references: (1) For the "Colorado Marital Agreement Act", see part 3 of article 2 of this title.(2) For the legislative declaration contained in the 1993 act amending subsections (1), (2), and (6), see section 1 of chapter 165, Session Laws of Colorado 1993.
Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 505, 506, 508, 515-517, 1108-1121, 1131.
C.J.S. See 27C C.J.S., Divorce, § § 572-578.
Law reviews. For note, "Incorporation by Reference of Agreements Made by the Parties in Divorce Decrees", see 21 Rocky Mt. L. Rev. 420 (1949). For note, "The Paradoxical Separation Agreement", see 21 Rocky Mt. L. Rev. 434 (1949). For comment on Irwin v. Irwin, appearing below, see 35 U. Colo. L. Rev. 440 (1963). For note, "Effects of Reconciliation on Separation Agreements in Colorado", see 51 U. Colo. L. Rev. 399 (1980). For article, "Pre-Nuptial Agreements Revisited", see 11 Colo. Law. 1882 (1982). For article, "Mediation and the Colorado Lawyer", see 11 Colo. Law. 2315 (1982). For article, "Dischargeability of Dissolution Debts under the Bankruptcy Code", see 13 Colo. Law. 814 (1984). For article, "Domestic Case Update", see 14 Colo. Law. 209 (1985). For article, "Seeking Change in Separation Agreement", see 15 Colo. Law. 806 (1986). For article, "Cohabitation Agreements in Colorado", see 15 Colo. Law. 979 (1986). For article, "Common Law Marriage in Colorado", see 15 Colo. Law. 252 (1987).
Annotator's note. Although § 14-10-112 enacted in 1971 has no similar provision in previous codes and laws of Colorado, relevant cases decided under repealed § § 46-1-1 through 46-1-11, C.R.S. 1963, § § 46-1-1 through 46-1-15, CRS 53, CSA, C. 56, § § 1 through 32, and laws antecedent thereto have been included in the annotations to this section. (But see In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975), concerning the precedential value of such cases.)
Purpose of the separation agreement is to enable divorcing parties to reach an amicable out-of-court settlement of their claims to the property of the other. In re Manzo, 659 P.2d 669 (Colo. 1983).
This section does not preclude a stipulated oral separation agreement; the issue is whether the parties intend to be bound by the terms of an agreement, whether oral or written. In re Chambers, 657 P.2d 458 (Colo. App. 1982).
It has been established that a husband and wife may enter into contracts which settle their differences, and the trial court, while determining division of property accumulated during the marriage, cannot disregard such a contract where it is free from fraud, collusion, compulsion, or unconscionability. Jekot v. Jekot, 32 Colo. App. 118, 507 P.2d 473 (1973); Magarrell v. Magarrell, 144 Colo. 228, 355 P.2d 946 (1960); Irwin v. Irwin, 150 Colo. 261, 372 P.2d 440 (1962).
While courts generally adopt stipulations between the parties, relating to alimony, they are not bound to do so. Hobbs v. Hobbs, 72 Colo. 190, 210 P. 398 (1922).
The agreement must be in all respects fair, reasonable, and just, and it must make sufficient provision for the maintenance of the wife according to the status of the parties. Daniels v. Daniels, 9 Colo. 133, 10 P. 657 (1886); Hobbs v. Hobbs, 72 Colo. 190, 210 P. 398 (1922).
In agreements of this nature it must be made to appear that the husband has dealt fairly and equitable with his wife in the transaction. Hill v. Hill, 70 Colo. 47, 197 P. 236 (1921); Hobbs v. Hobbs, 72 Colo. 190, 210 P. 398 (1922).
Parents may not by agreement divest the court of continuing jurisdiction over the custodial rights and duties of maintenance of children during their minority. Irwin v. Irwin, 150 Colo. 261, 372 P.2d 440 (1962).
Legal or equitable lien not created by decree. Language of dissolution decree which awarded the house to husband and his mother and ordered husband to execute a promissory note in favor of wife to become due upon the occurrence of one of several possible events did not create a legal or equitable lien on the property in favor of wife where the court did not impose any duty on the husband to pay the note from the proceeds resulting from the sale of the property and did not order the husband to execute a deed of trust or other security instrument to secure payment of the note. Leyden v. Citicorp Indus. Bank, 762 P.2d 689 (Colo. App. 1988).
Applied in Lowery v. Lowery, 195 Colo. 86, 575 P.2d 430 (1978); In re Stedman, 632 P.2d 1048 (Colo. App. 1981).
Precedential value of prior decisions. In interpreting the current statute, the courts do not consider that the decisions on separation agreements incorporated in decrees in actions arising under the 1917 act (CRS 53, § 46-1-5) have any precedential value. In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).
This section is explicitly limited to separation agreements; antenuptial agreements cannot be challenged as unconscionable under this section. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979); In re Newman v. Newman, 653 P.2d 728 (Colo. 1982).
Separation agreements and antenuptial agreements are separate and distinct legal documents. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part, rev'd on other grounds, 653 P.2d 728 (Colo. 1982).
While separation agreements contemplate disposition of property interests which mature because of the marriage status, prenuptial agreements fix the property rights of the parties, regardless of the duration of the marriage. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979); In re Lemoine-Hofmann, 827 P.2d 587 (Colo. App. 1992).
Spouses-to-be have right to enter into antenuptial agreements which contemplate the possibility of dissolution. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part, rev'd on other grounds, 653 P.2d 728 (Colo. 1982).
Where husband conceded that wife put him through college pursuant to their oral prenuptial agreement, such agreement is not void pursuant to statute of frauds since oral contracts otherwise unenforceable under § 38-10-101, et seq., may substitute for a writing if there is part performance of the oral contract. In re Lemoine-Hofmann, 827 P.2d 587 (Colo. App. 1992).
Standard for review compared with review of antenuptial agreement. The standard applied for court review of the division of property in a separation agreement allows the court more discretion than the standard for court review of the division of property in an antenuptial agreement. In re Manzo, 659 P.2d 669 (Colo. 1983).
Courts reviewing separation agreements prior to entry of a decree of dissolution need more latitude than is allowed for review of antenuptial agreements because of the public policy concern for safeguarding the interests of a spouse whose consent to the agreement may have been obtained under more emotionally stressful circumstances, especially if that spouse is unrepresented by counsel. In re Manzo, 659 P.2d 669 (Colo. 1983).
Where parties to a divorce action had settled all their differences by agreement, and the only duties of husband are those set forth therein, there being no authority for the allowance of attorney's fees to the wife, the court was without authority to award such fees. Irwin v. Irwin, 150 Colo. 261, 372 P.2d 440 (1962); Newey v. Newey, 161 Colo. 395, 421 P.2d 464, 422 P.2d 641 (1967).
The trial court, in determining the pecuniary provision for the wife upon granting a decree of divorce to her, has no right to disregard a previous agreement free from fraud, collusion, or compulsion, and fair to her, entered into between her and her husband in contemplation of a divorce, settling and adjusting all their property rights, including dower, alimony, and support. Newey v. Newey, 161 Colo. 395, 421 P.2d 464, 422 P.2d 641 (1967).
Where there was a self-operative trust agreement between the parties to a divorce action in settlement of their property rights, such agreement was binding upon the parties, and the court was without jurisdiction to set it aside, no showing of fraud, duress, or mistake appearing. Brown v. Brown, 131 Colo. 467, 283 P.2d 951 (1955).
Formerly, an agreement between husband and wife which provided for alimony or property settlement in contemplation of divorce was presumptively fair, and the burden was on the wife to establish the contrary. Newey v. Newey, 161 Colo. 395, 421 P.2d 464, 422 P.2d 641 (1967).
The court is not required to approve blindly an agreement it finds unconscionable. In re Eller, 38 Colo. App. 74, 552 P.2d 30 (1976).
Provisions of a proposed separation settlement agreement proffered for incorporation into a dissolution decree may be refused as "unconscionable" if the trial court concludes that the agreement is not fair, reasonable, and just. In re Carney, 631 P.2d 1173 (Colo. App. 1981).
Court may determine whether written separation agreement accurately expresses intent and agreement of parties and may exercise its equitable powers where necessary before this section becomes applicable. In re Deines, 44 Colo. App. 98, 608 P.2d 375 (1980).
Unconscionability has no relevance to testing of custody agreement. In re Lawson, 44 Colo. App. 105, 608 P.2d 378 (1980).
In determining whether an agreement is, or has become, unconscionable, the trial court should consider and apply the pertinent criteria set forth in the following sections: This section as to the economic circumstances of the parties; § 14-10-113 (1) as to the division of property; § 14-10-114 (1) as to maintenance; and § 14-10-115 (1) as to child support. In re Lowery, 39 Colo. App. 413, 568 P.2d 103 (1977), aff'd, 195 Colo. 86, 575 P.2d 430 (1978).
Review of provisions before incorporation into dissolution decree. Before a court incorporates property division provisions of a separation agreement into a dissolution decree, it should first review the provisions for fraud, overreaching, concealment of assets, or sharp dealing not consistent with the obligations of marital partners to deal fairly with each other, and then look at the economic circumstances of the parties which result from the agreement, including a determination whether under the totality of the circumstances the property disposition is fair, just and reasonable. In re Manzo, 659 P.2d 669 (Colo. 1983); In re Seely, 689 P.2d 1154 (Colo. App. 1984).
To set aside a property settlement agreement prior to its being incorporated in a dissolution decree, the court need not find that overreaching, inequality of bargaining power or other elements of fraud are present. Rather, before the agreement is set forth in the decree, a court may set aside as unconscionable any agreement that is not "fair, reasonable and just". In re Wigner, 40 Colo. App. 253, 572 P.2d 495 (1977).
Appellate court was not bound by the determination of the trial court applying the unconscionability standard set forth in this section to an agreement, inasmuch as the resolution of that issue would be based upon the interpretation of the document and on uncontroverted facts. In re Lemoine-Hofmann, 827 P.2d 587 (Colo. App. 1992).
Provision for support payment increases based on salary increases allowable. A provision in a separation agreement that the amount of child support payments to be made by husband would increase in proportion to actual increases in husband's salary is allowable and creates no presumption of unconscionability which would violate this section. In re Pratt, 651 P.2d 456 (Colo. App. 1982).
Formerly, where the stipulation and property settlement was approved by the courts, but the terms thereof were not set forth in a decree of divorce, the rights of the parties rested upon a contract, and not upon the decree, and were contractual and not decreed rights and obligations. Murphy v. Murphy, 138 Colo. 516, 335 P.2d 280 (1959); Cawley v. Cawley, 139 Colo. 439, 340 P.2d 122 (1959).
Formerly, where parties to a divorce action entered into a binding contract settling all their differences, the obligation of each to the other stemmed from the contract, and relief, if any, must have been based upon the rights of the parties under the contract. Irwin v. Irwin, 150 Colo. 261, 372 P.2d 440 (1962).
Formerly, where a trial court in a divorce action had no part in determining the property and financial rights of the parties, other than to approve and confirm an agreement purporting to settle all such financial and property rights, the incorporation of such agreement by references in the interlocutory or final decree in the action did not make the terms of such agreement an order or decree of the court, and was not a determination by the court of the respective rights of the parties, but was their voluntary adjustment of their differences, and unless the terms thereof are adopted by the court and fully and specifically set forth in the order or decree, the rights of the parties rest wholly upon the contract and not upon the decree of the court. Murphy v. Murphy, 138 Colo. 516, 335 P.2d 280 (1959).
Prior to incorporation in decree, separation agreement is contract. Prior to its incorporation in a dissolution decree, a separation agreement is a contract between the parties to a marriage. In re Manzo, 659 P.2d 669 (Colo. 1983).
A reference to a separation agreement and an approval thereof by the court is sufficient to make it a part of the decree. Berglund v. Berglund, 28 Colo. App. 382, 474 P.2d 800 (1970).
The terms of any agreement must have been fully and specifically set forth in a decree. Murphy v. Murphy, 138 Colo. 516, 335 P.2d 280 (1959).
Incorporation by reference allowed. The wording in subsection (4)(a) of this section that "its terms shall be set forth in the decree" does not prohibit incorporation by reference. In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).
When an agreement has been incorporated by reference into the decree, it is as effectively a part thereof as if recited therein in haec verba. In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).
So long as it is clear what document is being referred to and that the parties intended for it to be a part of the decree, such incorporation is within the underlying purposes of this section and there is no apparent reason for requiring the recopying of the words into the court order. In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).
If an executed agreement for a division of property was not incorporated in or made a part of an interlocutory and final decree of divorce, and was not reserved for future action, it was not merged in the divorce proceedings. Cawley v. Cawley, 139 Colo. 439 340 P.2d 122 (1959).
If the property rights and obligations of the parties to a divorce action who had entered into a settlement agreement were to rest upon the court decree, then any such agreement as to those rights should have been fully and specifically set forth in the decree in order that the duties and rights could be definitely ascertained from the decree itself. Taylor v. Taylor, 147 Colo. 140, 362 P.2d 1027 (1961).
Failure to attach prior stipulation as to maintenance of no consequence. Where both parties clearly intended to have a copy of the stipulation regarding maintenance, child support, and division of property, "a part and portion of the decree of dissolution", the absence of any question as to what document is being alluded to, and the agreement by the husband's lawyer, at the hearing for the decree, to the adoption by reference of the stipulation in the earlier separate maintenance case, make the failure to have a copy identified as an exhibit and attached to the decree of no consequence. In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).
Incorporation of parties' agreement regarding medical insurance and expenses into permanent orders was not beyond the trial court's jurisdiction, and father's failure to pay such expenses could constitute contempt. In re Alverson, 981 P.2d 1123 (Colo. App. 1999).
Formerly, where parties to a divorce action entered into an agreement settling their property rights, which agreement it incorporated in the final decree, the court was thereafter without jurisdiction -- no fraud in procuring the settlement appearing -- to modify the terms of the decree concerning such property rights in the absence of consent of the parties. Brown v. Brown, 131 Colo. 467, 283 P.2d 951 (1955); Magarrell v. Magarrell, 144 Colo. 228, 355 P.2d 946 (1960); Lay v. Lay, 162 Colo. 43, 425 P.2d 704 (1967); Berglund v. Berglund, 28 Colo. App. 382, 474 P.2d 800 (1970); Watson v. Watson, 29 Colo. App. 449, 485 P.2d 919 (1971); Ingels v. Ingels, 29 Colo. App. 585 487 P.2d 812 (1971).
Modification or revocation of agreement incorporated into decree. Where the parties' property settlement agreement has been incorporated into the decree of dissolution, it is subject to revocation or modification to the same extent as a property division rendered solely by the court. In re Stroud, 631 P.2d 168 (Colo. 1981).
Modification of property division provisions. Once property division provisions of a separation agreement have been incorporated into a dissolution of marriage decree, they may not be set aside or modified unless the conditions of C.R.C.P. 60 are met. In re Seely, 689 P.2d 1154 (Colo. App. 1984).
When court has power to modify maintenance. A trial court has authority to test a settlement agreement on the standard of present unconscionability and for possible modification of maintenance under two circumstances: if the agreement or the decree reserves that power to the trial court, or, if the agreement and the decree are silent on the power to modify. In re Thompson, 640 P.2d 279 (Colo. App. 1982).
The court retained jurisdiction to modify the separation agreement where the agreement specifically provided that the issue of retirement benefits obtained as a result of the husband's military service shall remain open and modifiable. In re Sinkovich, 830 P.2d 1101 (Colo. App. 1992).
Restriction of court's jurisdiction to modify must be unequivocal. While subsection (6) permits the parties to restrict the jurisdiction of the court to modify the maintenance terms of a settlement agreement, such a restriction must specifically and unequivocally preclude modification. In re Rother, 651 P.2d 457 (Colo. App. 1982).
Where maintenance provision not modifiable. Where there was no reservation in the trial court of the power to modify a maintenance provision, the court cannot do so later. In re Thompson, 640 P.2d 279 (Colo. App. 1982).
The waiver of the right to seek modification in and of itself could well be the consideration for a concession in the amount or duration of maintenance, or in the property received by a party. Thus, to permit reconsideration of the amount of maintenance contracted for, without also reopening the property division, would be inequitable. In re Thompson, 640 P.2d 279 (Colo. App. 1982).
Modification by parties' agreement not reservation to court of power. The fact that an agreement allows modification by agreement of the parties is not a reservation to the court of the power to modify; rather, it is a limitation on the court's power. In re Thompson, 640 P.2d 279 (Colo. App. 1982).
Only unequivocal language in the terms of the settlement precludes the court from modifying the support provisions. No such language existed where the settlement provided that the period for payment of maintenance could be extended by further order of the court. Aldinger v. Aldinger, 813 P.2d 836 (Colo. App. 1991).
Where the parties' dissolution decree incorporated a separation agreement that stated that the husband's retirement benefits remained open and modifiable, the trial court had the authority to divide the husband's military retirement pension. In re Sinkovich, 830 P.2d 1101 (Colo. App. 1992).
Modification of agreement permitted upon showing of fraud or overreaching. Where the terms of a divorce decree specifically preclude modification, without the written consent of the parties, a court can modify the agreement only upon a showing of fraud or overreaching. In re Cohen, 44 Colo. App. 200, 610 P.2d 1092 (1980).
Where separation agreement and alimony not modifiable. Where a separation agreement was adopted and incorporated into the decree of divorce, and the agreement did not reserve to the court jurisdiction to modify the terms of the alimony provision, nor did the court in its order adopting and incorporating the agreement into the divorce decree specifically reserve the right to modify the terms thereof, the court cannot later modify the agreement or the alimony provisions. Burleson v. District Court, 196 Colo. 455, 586 P.2d 665 (1978).
Waiver clause in separation agreement is binding to bar pursuit of further spousal maintenance since promised maintenance payments were actually made despite technical default regarding the method of payment where wife acquiesced to such manner and there was no showing of fraud, collusion, or compulsion. In re Vincent, 709 P.2d 959 (Colo. App. 1985).
Modification of parenting time and the related non-modification of child support agreement was made an order of court and so constituted an amendment to the original order and therefore are no longer enforceable as contract terms because they were made an order of court. In re Rosenthal, 903 P.2d 1174 (Colo. App. 1995).
Property lien to enforce agreement. A court may impose a lien on a party's property in order to enforce an agreement where the party has threatened to dispose of the property and put himself beyond the court's jurisdiction. In re Valley, 633 P.2d 1104 (Colo. App. 1981).
Separation agreement is incorporated into and superseded by decree and, therefore, governed by remedies available for the enforcement of a judgment. In re Meisner, 807 P.2d 1205 (Colo. App. 1990).
(1) In a proceeding for dissolution of marriage or in a proceeding for legal separation or in a proceeding for disposition of property following the previous dissolution of marriage by a court which at the time of the prior dissolution of the marriage lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court, subject to the provisions of subsection (7) of this section, shall set apart to each spouse his or her property and shall divide the marital property, without regard to marital misconduct, in such proportions as the court deems just after considering all relevant factors including:
(a) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(b) The value of the property set apart to each spouse;
(c) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse with whom any children reside the majority of the time; and
(d) Any increases or decreases in the value of the separate property of the spouse during the marriage or the depletion of the separate property for marital purposes.
(2) For purposes of this article only, and subject to the provisions of subsection (7) of this section, "marital property" means all property acquired by either spouse subsequent to the marriage except:
(a) Property acquired by gift, bequest, devise, or descent;
(b) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(c) Property acquired by a spouse after a decree of legal separation; and
(d) Property excluded by valid agreement of the parties.
(3) Subject to the provisions of subsection (7) of this section, all property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property described in this subsection (3) is overcome by a showing that the property was acquired by a method listed in subsection (2) of this section.
(4) Subject to the provisions of subsection (7) of this section, an asset of a spouse acquired prior to the marriage or in accordance with subsection (2) (a) or (2) (b) of this section shall be considered as marital property, for purposes of this article only, to the extent that its present value exceeds its value at the time of the marriage or at the time of acquisition if acquired after the marriage.
(5) For purposes of this section only, property shall be valued as of the date of the decree or as of the date of the hearing on disposition of property if such hearing precedes the date of the decree.
(6) (a) (I) Notwithstanding any anti-assignment, anti-alienation, or other provision of law to the contrary, all retirement benefits of any nature for public employees from a plan described in section 414 (p) of the federal "Internal Revenue Code of 1986", as amended, that is established pursuant to Colorado law shall be, in all actions for dissolution of marriage, legal separation, and declaration of invalidity of marriage, divisible directly by the plan upon written agreement of the parties to such an action pursuant to paragraph (c) of this subsection (6).
(II) The provisions of this subsection (6) shall apply to all dissolution of marriage, legal separation, and declaration of invalidity of marriage actions filed on or after January 1, 1997, and all dissolution of marriage, legal separation, or declaration of invalidity of marriage actions filed prior to January 1, 1997, in which the court did not enter a final property division order concerning the parties' public employee retirement benefits prior to January 1, 1997.
(b) As used in this subsection (6), unless the context otherwise requires:
(I) "Alternate payee" means a party to a dissolution of marriage, legal separation, or declaration of invalidity action who is not the participant of the public employee retirement plan divided or to be divided but who is married to or was married to the participant and who is to receive, is receiving, or has received all or a portion of the participant's retirement benefit by means of a written agreement as described in paragraph (c) of this subsection (6).
(II) "Defined benefit plan" means a retirement plan that is not a defined contribution plan and that usually provides benefits as a percentage of the participant's highest average salary, based on the plan's benefit formula and the participant's age and service credit at the time of retirement.
(III) "Defined contribution plan" means a retirement plan that provides for an individual retirement account for each participant and the benefits of which are based solely on the amount contributed to the participant's account and that includes any income, expenses, gains, losses, or forfeitures of accounts of other participants that may be allocated to the participant's account.
(IV) "Participant" means the person who is an active, inactive, or retired member of the public employee retirement plan.
(c) (I) The parties may enter into a marital agreement pursuant to part 3 of article 2 of this title or a separation agreement pursuant to section 14-10-112 concerning the division of a public employee retirement benefit between the parties pursuant to a written agreement. The parties shall submit such written agreement to the plan administrator within ninety days after entry of the decree and the permanent orders regarding property distribution in a proceeding for dissolution of marriage, legal separation, or declaration of invalidity of marriage.
(II) A written agreement dividing a public employee retirement benefit shall:
(A) Specify the full legal name of the retirement plan or plans to which it applies;
(B) Specify the name, social security number, and last-known mailing address of the participant and the alternate payee as well as the alternate payee's relationship to the participant;
(C) For an agreement concerning a defined benefit plan, specify the distribution method, as described in subparagraph (III) of this paragraph (c), subject, if the plan permits, to benefit adjustments payable at the same time and in the same manner as any benefit adjustments applied to the participant's distribution.
(D) For an agreement concerning a defined contribution plan, specify the alternate payee's portion of the participant's account as a fixed lump-sum amount, or as a percentage, in either case, as of a specified date, from specific accounts of the participant and, unless the plan adopts rules and regulations pursuant to paragraph (d) of this subsection (6) permitting the plan to retain the alternate payee's portion of the participant's account, require that distribution to the alternate payee be made within one hundred twenty days after a certified court order approving the agreement has been submitted to and received by the plan;
(E) Not provide for payments to the alternate payee or to the participant for which he or she would not otherwise be eligible if there were no dissolution of marriage, legal separation, or declaration of invalidity action pending;
(F) For an agreement concerning a defined benefit plan, not require the plan to pay the alternate payee prior to the date payments commence to the participant or prior to the participant attaining age sixty-five or actual retirement date, whichever date is earlier, or at such later date as the parties may otherwise agree in writing;
(G) For an agreement concerning a defined benefit plan, provide that the alternate payee's rights to payments terminate upon the involuntary termination of benefits payable to the participant or upon the death of the alternate payee, whichever occurs first, unless the parties agree to elect, or have already elected, a benefit option under the plan that provides for a cobeneficiary benefit to the alternate payee;
(H) Provide that the manner of payment shall be in a form or type permissible under the plan. The agreement shall not require through this subsection (6) the payment of a benefit, benefit amount, or distribution option not otherwise set out in the plan document or statute.
(I) Not require the plan to pay benefits that are already required to be paid to another alternate payee or are already subject to an assignment or lien;
(J) Specify that it shall apply to successor plans;
(K) Comply with any rules or procedures promulgated pursuant to paragraph (d) of this subsection (6); and
(L) Specify that, once approved by the court, the order approving the agreement shall be certified by the clerk of the court and submitted to and received by the retirement plan at least thirty days before the plan may make its first payment.
(III) The written agreement between the parties described in subparagraph (II) of this paragraph (c) shall contain only one method or formula to be applied to divide the defined benefit plan. For purposes of sub-subparagraph (C) of subparagraph (II) of this paragraph (c), the parties may select any one of the following methods by which to divide the defined benefit plan:
(B) A fixed percentage of the payment to the participant;
(C) The time-rule formula determined by dividing the number of months of service credit acquired under the plan during the marriage as set forth in the court's order by the number of months of service credit in such plan at the time of the participant's retirement as determined by the plan, which quotient shall be multiplied by a percentage specified in the court's order, and the product thereof shall be further multiplied by the amount of the payment to the participant at the date of retirement;
(D) A formula determined by dividing the number of months of service credit acquired under the plan during the marriage as set forth in the court's order by the number of months of service credit in such plan as of the date of the decree as determined by the plan, regardless of when the participant is expected to retire, which quotient shall be multiplied by a percentage specified in the court's order, and the product thereof shall be further multiplied by the amount of the payment the participant would be entitled to receive as if the participant were to retire and receive an unreduced benefit on the date of the decree; or
(E) Any other method or formula mutually agreed upon by the parties that specifies a dollar amount or percentage payable to the alternate payee.
(d) The trustees or the administrator of each retirement plan may promulgate rules or procedures governing the implementation of this subsection (6) with respect to public employee retirement plans that they administer. Such rules or procedures may include the requirement that a standardized form be used by the parties and the court for an order approving the parties' agreement to be effective as well as other provisions consistent with the purpose of this subsection (6).
(e) Compliance with the provisions of this subsection (6) by a public employee retirement plan shall not subject the plan to any portions of the federal "Employee Retirement Income Security Act of 1974", as amended, that do not otherwise affect governmental plans generally. Any plan that reasonably complies with an order approving an agreement entered into pursuant to this subsection (6) shall be relieved of liability for payments made to the parties subject to such order.
(f) A court shall have no jurisdiction to enter an order dividing a public employee retirement benefit except upon written agreement of the parties pursuant to this subsection (6). A court shall have no jurisdiction to modify an order approving a written agreement of the parties dividing a public employee retirement benefit unless the parties have agreed in writing to the modification. A court may retain jurisdiction to supervise the implementation of the order dividing the retirement benefits.
(7) (a) For purposes of subsections (1) to (4) of this section only, except with respect to gifts of nonbusiness tangible personal property, gifts from one spouse to another, whether in trust or not, shall be presumed to be marital property and not separate property. This presumption may be rebutted by clear and convincing evidence.
(b) For purposes of subsections (1) to (4) of this section only, "property" and "an asset of a spouse" shall not include any interest a party may have as an heir at law of a living person or any interest under any donative third party instrument which is amendable or revocable, including but not limited to third-party wills, revocable trusts, life insurance, and retirement benefit instruments, nor shall any such interests be considered as an economic circumstance or other factor.
(c) (I) The provisions of this subsection (7) shall apply to all causes of action filed on or after July 1, 2002. The provisions of this subsection (7) shall also apply to all causes of action filed before said date in which a final property disposition order concerning matters affected by this subsection (7) was not entered prior to July 1, 2002.
(II) For purposes of this paragraph (c), "final property disposition order" means a property disposition order for which the time to appeal has expired or for which all pending appeals have been finally concluded.
Source: L. 71: R&RE, p. 525, § 1. C.R.S. 1963: § 46-1-13. L. 73: pp. 553, 555, § § 6, 7, 12. L. 75: IP(1) amended, p. 210, § 25, effective July 16. L. 96: (6) added, p. 1457, § 1, effective January 1, 1997. L. 97: (6)(a) amended, p. 100, § 1, effective March 24. L. 98: (6)(c)(I) and (6)(c)(II)(C) amended and (6)(c)(III) added, p. 355, § 1, effective August 5; (1)(c) amended, p. 1397, § 40, effective February 1, 1999. L. 99: (6)(c)(I), (6)(c)(II)(L), and (6)(f) amended, p.46, § 1, effective March 15. L. 2002: (6) (a) (I) amended, p. 138, § 1, effective March 27; IP(1), IP(2), (3), and (4) amended and (7) added, p. 1054, § 1, effective June 1.
Cross references: For the federal "Employee Retirement Income Security Act of 1974", see 29 U.S.C. sec. 1001 et seq.
Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 497-599.
C.J.S. See 27B C.J.S., Divorce, § § 508-571.
Law reviews. For note, "Effects of Reconciliation on Separation Agreements in Colorado", see 51 U. Colo. L. Rev. 399 (1980). For article, "The Economy: Its Effects on Family Law", see 11 Colo. Law. 97 (1982). For article, "Pre-Nuptial Agreements Revisited", see 11 Colo. Law. 1882 (1982). For article, "Marital Property", see 13 Colo. Law. 1209 (1984). For article, "Domestic Case Update", see 14 Colo. Law. 209 (1985). For article, "Division of Pension Benefits in Divorce Proceedings", see 14 Colo. Law. 378 (1985). For article, "Taxation", which discusses a recent Tenth Circuit decision dealing with periodic payments as alimony or property settlement, see 61 Den. L.J. 392 (1984). For article, "Cohabitation Agreements in Colorado", see 15 Colo. Law. 979 (1986). For article, "Common Law Marriage in Colorado", see 16 Colo. Law. 252 (1987). For article, "Division of Civil Service Retirement Benefits in Divorce", see 17 Colo. Law. 643 (1988). For article, "Standards for Tracing Marital Property Back to Non-Marital Property", see 17 Colo. Law. 853 (1988). For article, "Determining Benefits for Former Spouses of Military Personnel", see 19 Colo. Law. 1073 (1990). For article, "Classifying Income, Rents, and Profits from Separate Property", see 24 Colo. Law. 1303 (1994). For article, "Marital or Separate Property: An Overview for Practitioners", see 24 Colo. Law. 571 (1995). For article, "Employee Stock Options and Restricted Shares: Determining and Dividing the Marital Property", see 25 Colo. 87 (October 1996). For article, "Valuing Business Goodwill in a Divorce", see 26 Colo. Law. 53 (April 1997). For article, "Establishing Separate Property Through Asset Tracing After Burford", see 28 Colo. Law. 55 (January 1999). For article, "How Income Taxes Affect Property Settlements", see 29 Colo. Law. 55 (January 2000). For article, "Divorce Considerations Relevant to an Estate Planning Practice", see 29 Colo. Law. 53 (February 2000). For article, "Retirement Benefits in Divorce: Mixing, Matching, and Offsetting", see 29 Colo. Law. 67 (June 2000). For article, "Balanson: Drafting Trust to Deflect the Spousal Creditor", see 30 Colo. Law. 131 (October 2001).
Annotator's note. Since § 14-10-113 is similar to repealed § 46-1-5(2), C.R.S. 1963, § 46-1-5, CRS 53, CSA, C. 56, § 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Uniform Dissolution of Marriage Act provides separate sections that govern the different elements of a dissolution order, specifically property disposition, maintenance, child support, and attorney fees. The court is required to make separate orders regarding these elements based on separate considerations, and may not commingle one element with another. In re Huff, 834 P.2d 244 (Colo. 1992).
There is a distinction between maintenance awards and property settlements. Property divisions are intended to accomplish a just apportionment of marital property over time, whereas maintenance is intended be a substitute for marital support that can be used, for example, to ease a spouse's transition into the work force and prevent the spouse from becoming dependent on public assistance. In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).
Division of property is mandatory under this section, whereas an award of maintenance is discretionary under § 14-10-114. In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).
This statute is a legislative recognition of preexisting Colorado law. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1973), aff'd, 523 F.2d 853 (10th Cir. 1975).
Awarding of attorney fees is discretionary with trial court and will not be disturbed on review if supported by the evidence. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev'd on other grounds, 653 P.2d 728 (Colo. 1982); In re Kiefer, 738 P.2d 54 (Colo. App. 1987).
Equitable lien created by decree of dissolution. Where wife was ordered to quitclaim her undivided one-third interest in the family home to husband and his mother in exchange for a promissory note representing the value of such interest, an equitable lien to prevent unjust enrichment was imposed on the property because repayment of the note was conditioned in part on events involving disposition of the property. Leyden v. Citicorp Indus. Bank, 782 P.2d 6 (Colo. 1989).
The needs of the children are of paramount importance; therefore, statutory provisions may not be modified by agreement if to do so would affect the rights of the child whom the statute is designed to protect. In re Miller, 790 P.2d 890 (Colo. App. 1990).
Attorney fees are not a non-challengeable marital debt under this section. In re Rieger, 827 P.2d 625 (Colo. App. 1992).
Applied in In re Mitchell, 195 Colo. 399, 579 P.2d 613 (1978); Mayer v. District Court, 198 Colo. 199, 597 P.2d 577 (1979); In re Engelman, 43 Colo. App. 531, 605 P.2d 490 (1979); In re Hartford, 44 Colo. App. 303, 612 P.2d 1163 (1980); In re Carney, 631 P.2d 1173 (Colo. 1981); In re Stewart, 632 P.2d 287 (Colo. App. 1981); In re Everhart, 636 P.2d 1321 (Colo. App. 1981); In re Manzo, 659 P.2d 669 (Colo. 1983).
Law reviews. For article, "Property or Expectancy: The Division of Trust Assets at Dissolution of Marriage", see 30 Colo. Law. 63 (February 2001).
This statute makes property division mandatory. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1973), aff'd, 523 F.2d 853 (10th Cir. 1975); In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).
Where the trial court has the necessary jurisdiction, over not only the subject matter but the persons as well, it is required to divide the marital property in accordance with this section . In re Quay, 647 P.2d 693 (Colo. App. 1982).
Language of subsection (1)(c) is not mandatory. In re Warrington, 44 Colo. App. 294, 616 P.2d 177 (1980).
Colorado is not a community property state. In re Ellis, 36 Colo. App. 234, 538 P.2d 1347 (1975), aff'd, 191 Colo. 317, 552 P.2d 506 (1976).
The statutory mandate to distribute property equitably does not require equality. In re Warrington, 44 Colo. App. 294, 616 P.2d 177 (1980); In re Weiss, 695 P.2d 778 (Colo. App. 1984); In re Fenimore, 782 P.2d 872 (Colo. App. 1989); In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied 846 P.2d 189 (Colo. 1993).
The parties need not be accorded equal shares in the marital estate. In re Boyd, 643 P.2d 804 (Colo. App. 1982).
It has been held repeatedly that in matters of division of property the trial court is imbued with broad discretion, and that the mandate to distribute property equitably does not require equality. In re Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975).
Facially disproportionate division of property not inequitable where economic circumstances of each spouse were properly considered. In re Sorensen, 679 P.2d 612 (Colo. App. 1984).
There is no requirement that the court divide property with precise equality in order to achieve an equitable division. In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979).
Increases in separate property or marital property do not mandate that such property be divided equally, nor does it necessarily preclude the award of substantially all of such property to only one spouse. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).
A trial judge cannot in all circumstances evaluate marital property with razor-sharp exactness so that each party's share has a precise monetary value. Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).
The distribution of marital property must be just and equitable, but need not be necessarily equal. In re McGinnis, 778 P.2d 281 (Colo. App. 1989); In re Jaeger, 883 P.2d 577 (Colo. App. 1994); In re Goldin, 923 P.2d 376 (Colo. App. 1996); In re Stumpf, 932 P.2d 845 (Colo. App. 1996); In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999).
This section authorizes the trial court to make an equitable and just division of the property of persons involved in divorce proceedings as that property is shown to exist at the time of the order entered with regard thereto. Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964).
Court may not become a surrogate attorney for party who has chosen not to appear before the court in order to reach an equitable division of marital property. Therefore, trial court did not abuse its discretion in failing to elicit evidence concerning husband's current earnings, the use husband made of funds he withdrew from the joint bank account, or the classification of certain property as separate or marital. In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999).
The public policies to be furthered under this act include dividing of assets equitably and mitigating the harm to spouses and children. These policies take precedence over any contract arguments that may be raised by either spouse. Thus, the trial court was correct in refusing husband's indemnification argument and in interpreting the divorce decree as requiring the husband to compensate the wife for the fair market value of business property apportioned to her in the equitable distribution. In re Plesich, 881 P.2d 379 (Colo. App. 1994).
It is not objectionable that an exact dollar amount of the husband's contribution to assets cannot be determined from the testimony, as it is not a prerequisite to a fair and equitable division of property that such distribution be made in exact proportion to contribution of funds. Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971).
There is no mathematical formula for establishing a just and equitable property settlement, or alimony, or support. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).
It is improper for the court to continue a joint or common tenancy between divorced spouses in marital property. Rather, in dividing the marital property, the court should leave to each party a definable portion of ownership. In re Paul, 821 P.2d 925 (Colo. App. 1991).
In dividing marital property, specific findings regarding value of assets are not required as long as basis for decision of trial court is apparent from its findings. In re Sharp, 823 P.2d 1387 (Colo. App. 1991).
This issue of property division in a divorce action is not one of marital fault, but whether the wife is entitled thereto by reason of having contributed to the accumulation or preservation of the assets sought to be divided, and whether her conduct was such as to justify her sharing in a division of such property. Liggett v. Liggett, 152 Colo. 110, 380 P.2d 673 (1963); Kraus v. Kraus, 159 Colo. 331, 411 P.2d 240 (1966); Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).
Formerly, it was only one of the elements to be taken into consideration, and in the absence of moral delinquency or a complete disregard of the marriage vows, individual fault should not have acted as an obstacle to an equitable division of property. Bell v. Bell, 156 Colo. 513, 400 P.2d 440 (1965); Schrader v. Schrader, 156 Colo. 521, 400 P.2d 675 (1965).
Maintenance and property settlement must be considered together to achieve just result in dissolution proceedings. If an order dividing property cannot stand, the provision for maintenance must also be set aside to permit the trial court to consider both matters in relation to each other upon remand. In re Lord, 626 P.2d 698 (Colo. App. 1980), appeal dismissed, 653 P.2d 385 (Colo. 1982).
Property division must precede consideration of maintenance. In re Jones, 627 P.2d 248 (Colo. 1981); In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).
Fact that the parties waived maintenance has no bearing on the classification of stock shares as marital property; thus, wife's argument that because the stock purchase was made through a payroll deduction it constituted her compensation and could not be divided as property or considered maintenance, since both parties waived maintenance, was misplaced. In re Huston, 967 P.2d 181 (Colo. App. 1998).
There is a qualitative difference between a maintenance award and a division of property. A property division is final and non-modifiable absent conditions justifying relief from judgment. In re Wells, 833 P.2d 797 (Colo. App. 1991).
Statutory criteria for dividing property is general in nature, and the trial court has wide discretion in dividing marital property to accomplish a just result. In re Jackson, 698 P.2d 1347 (Colo. 1985).
Division of property must be based on the situation of the parties at the time of the decree rather than that at the time of their marriage. Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363 (1946); Stephenson v. Stephenson, 134 Colo. 96, 299 P.2d 1095 (1956); Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964).
Subsection (1)(c) requires the trial court to consider the economic circumstances of the respective spouses at the time of the hearing relating to the division of marital property. Therefore, the trial court erred as a matter of law in considering the economic circumstances of the parties at the time of the dissolution, rather than at the time of the permanent orders, which occurred in the year following the entry of the dissolution. In re Burford, 26 P.3d 550 (Colo. App. 2001).
Every property division action depends on the particular facts of each case. Granato v. Granato, 130 Colo. 439, 277 P.2d 236 (1954).
Many factors enter into the determination of what division of property shall be made in the event of a divorce, among these are the value of the estate to be divided; the financial condition of the parties; the ability of each spouse to earn money; how the property was acquired; the age and status of the parties, and all pertinent facts and circumstances bearing on the question. Kraus v. Kraus, 159 Colo. 331, 411 P.2d 240 (1966); Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662 (1955); Brigham v. Brigham, 141 Colo. 41, 346 P.2d 302 (1959); Larrabee v. Larrabee, 31 Colo. App. 493 504 P.2d 358 (1972).
Spouse's earning capabilities are properly part of the "economic circumstances" the court must consider in compliance with subsection (1). In re Faulkner, 652 P.2d 572 (Colo. 1982).
Contribution to an increase in separate property is an important factor, but not the sole factor to consider in dividing such property. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).
Value of husband's interest in corporation considered in determining division of property. Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).
Factors such as occupational experience, coupled with education, training, and business background should also be considered in determining what division should be made of property. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).
The award of rights in property to the wife was only another factor in the determination of the interests of the parties in the realty which they owned. McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690 (1962).
That the husband had transferred his property to his brother with fraudulent intent, and that it was reasonable to presume that he would not deal fairly, frankly, and openly with his wife and child, were facts properly to be considered by the court in making division of property. Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363 (1946).
Where the division of property was not in the nature of alimony or support money for the minor children, but was an equitable division based upon the fact that the wife, during marriage, in addition to the usual household duties, performed services that contributed to the husband's business advantage, a division of property could be ordered in addition to alimony . Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363 (1946).
The fact that much of the husband's property came by inheritance did not preclude the court from making an equitable division of property between a husband and a wife who had performed services contributing to her husband's business advantage, but was only one of many facts to be considered by the court. Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363 (1946).
Inherited property was formerly not per se excluded from consideration by the court in making a determination of the property rights of the parties. Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606 (1969).
Property division could be made even where a wife is not entitled to alimony. Britt v. Britt, 137 Colo. 524, 328 P.2d 947 (1958).
It is not a necessary prerequisite that a wife show that she has contributed by funds or efforts to the acquiring of any specific property awarded her. Britt v. Britt, 137 Colo. 524, 328 P.2d 947 (1958); Bell v. Bell, 156 Colo. 513, 400 P.2d 440 (1965); Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606 (1969).
But whether the wife has contributed to or in some manner aided in the accumulation or preservation of the assets sought to be divided must be ascertained. Kraus v. Kraus, 159 Colo. 331, 411 P.2d 240 (1966).
Where by her services beyond the usual duties of a homemaker, a wife contributes either funds or services which enable the husband to increase his property holdings, or to preserve those already held, the wife is entitled upon divorce to an equitable award of money or property as may be justified by the circumstances of the parties. Britt v. Britt, 137 Colo. 524, 328 P.2d 947 (1958).
The pecuniary resources of the husband were not to be regarded as a basis for a division of property, which was not the purpose of an allowance for the support of the wife, but they had a bearing upon the condition in life of the parties and thus upon the necessities of the wife, for as had been recognized in considering the liability of a husband for necessaries supplied to his wife, the term "necessaries" in this connection was not confined to articles of food or clothing required to sustain life, but had a much broader meaning and included such articles for use by a wife as were suitable to maintain her and the family according to the property and condition in life of her husband. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).
Where a wife advanced $8000 from her own funds to her husband to purchase property, a finding that the husband was indebted to the wife in such amount and that she should have had a lien on property to secure repayment thereof, being amply supported by the evidence, was not erroneous. Flor v. Flor, 148 Colo. 514, 366 P.2d 664 (1961).
Where a wife in outburst of emotion, damaged or destroyed husband's personal effects, it was not error to award husband value thereof against the wife. Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149 (1962).
It was not a prerequisite to a fair and equitable division of property that the wife must show that she had contributed by funds or effort to the acquisition of the specific property awarded to her. Schrader v. Schrader, 156 Colo. 521, 400 P.2d 675 (1965).
Where the husband was the owner of a minority stock interest and was not the owner of the home, piercing the corporate veil to determine the true value of an interest in a closely held corporation did not allow for an order that part of the corporation's property should be distributed to or used by a legal stranger, and the wife was not entitled to corporate assets, but to a sum of money, or possibly even shares of stock, based upon the fair value of her husband's interest. Kalcevic v. Kalcevic, 156 Colo. 151, 397 P.2d 483 (1964).
A dissolution of a marriage must be effective before any court had power to decree a division of property between a husband and wife. McCoy v. McCoy, 139 Colo. 105, 336 P.2d 302 (1959); Ikeler v. Ikeler, 84 Colo. 429, 271 P. 193 (1928).
Otherwise, the parties would still be married, and while that status continues there is always the possibility of a termination of the separation, and a court is therefore without power to finally determine the property rights of the parties. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).
This section does not prohibit a hearing on the parties' property settlement before the entry of the divorce decree, but merely provides that at the time of the issuance of the divorce decree, or thereafter, on application the court may make orders relating to property divisions. Kalcevic v. Kalcevic, 156 Colo. 151, 397 P.2d 483 (1964).
Personal service upon nonresident is not prerequisite to division of property. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).
Jurisdiction over petitioner extends to property in state. Where petitioner has possession of property located in Colorado, the property being specifically described in the petition as an asset subject to disposition, the court acquires control of the property by virtue of its jurisdiction over petitioner, and the court thereby obtains jurisdiction to determine the appropriate disposition of that property. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).
Where the trial court has jurisdiction to divide property of the parties by virtue of the fact that the property was located in Colorado, it can properly adjudicate the rights of the parties with respect to property owned by them in Colorado. In re Wilson, 653 P.2d 85 (Colo. App. 1982).
The trial court did not exceed its jurisdiction in requiring the husband to execute and deliver deeds conveying his interest in the property to the wife, because although it has generally been held that a divorce court in one state does not have the power directly to affect, by means of its decree, the title to real property situated in another state, where the decree itself does not operate as a conveyance, but was wholly an in personam decree requiring that a party under the court's jurisdiction execute the conveyance, the court did not exceed its jurisdiction. Larrabee v. Larrabee, 31 Colo. App. 493, 504 P.2d 358 (1972).
"Date of the hearing". Where the hearing on disposition of property takes more than one day and there is a substantial interval between hearing days, the "date of the hearing" referred to in subsection (5) of this section is the day when the last evidence was presented on this matter. In re Femmer, 39 Colo. App. 277, 568 P.2d 81 (1977).
Where the trial court had jurisdiction to divide property at the time of entry of a final decree of divorce, but did not do so, nor then reserve the matter for further consideration, it lost jurisdiction to thereafter make a valid division of such property. Triebelhorn v. Turzanski, 149 Colo. 558, 370 P.2d 757 (1962).
Because former § 46-1-5(2), C.R.S. 1963, did not contemplate or authorize the court to exercise continuing supervisory powers over the management of the property subject to division. Larrick v. Larrick, 30 Colo. App. 327, 491 P.2d 1401 (1971).
Former § 46-1-5(2), C.R.S. 1963, required that an order dividing the property of the parties to a divorce proceeding be made either at the time the divorce decree was issued, or within such "reasonable time thereafter as may be set by the court at the time of the issuance of said divorce decree". Larrick v. Larrick, 30 Colo. App. 327, 491 P.2d 1401 (1971).
Where the trial court retained the jurisdiction to award such alimony as may be just upon a proper showing, in no way altered the finality of a portion of the decree which determined the rights and interests of the parties in the real estate. McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690 (1962).
The trial court retained jurisdiction of the controversy concerning the property settlement between these divorced parties as to matters affecting their property rights following the death of the husband. Sarno v. Sarno, 28 Colo. App. 598, 478 P.2d 711 (1970).
Trust where wife settlor and sole income beneficiary. Where wife had established a trust with herself as sole income beneficiary, the court had jurisdiction, in a subsequent divorce action, to order the trustee to make payments from the trust to the husband. In re Kaladic v. Kaladic, 41 Colo. App. 419, 589 P.2d 502 (1978).
The trial court in the absence of agreement between the parties to the divorce action could not, over the objection of the wife, order that her share in the property division be impressed with a trust. Ferguson v. Olmsted, 168 Colo. 374, 451 P.2d 746 (1969).
Reconsideration of property division to correct error unnecessary absent contest. When neither party contests a trial court's division of property it is not necessary that the court be able to reconsider the property division in order to correct error in the provisions for maintenance and attorney's fees. In re Jones, 627 P.2d 248 (Colo. 1981).
Payment of interest on spouse's equity in house. The wife may be required to pay interest on the husband's share of the equity in the house which was awarded to the wife, for the period between the dissolution of marriage and payment of the equity. In re Garcia, 638 P.2d 848 (Colo. App. 1981).
Interest on portion of sale price of marital residence representing husband's share is to be calculated from date specified in decree that payment of such amount become due, not date of sale. In re Schutte, 721 P.2d 160 (Colo. App. 1986).
Transfer is not taxable event. When, under this section, a property settlement agreement is entered into providing for a transfer of property from husband to wife in acknowledgment of the wife's contribution to the accumulation of the marital estate, or a decree of the divorce court requires such transfer because of wife's contributions to the accumulation of the family estate, and the transfer is not made in satisfaction of the husband's obligation for support, the transfer is not a taxable event giving rise to capital gains tax liability for purposes of federal income taxation. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1973), aff'd, 523 F.2d 853 (10th Cir. 1975).
Acts of depletion of marital estate are relevant considerations in making a division of property and not an imputation of marital misconduct on the part of a spouse. In re Paulsen, 677 P.2d 1389 (Colo. App. 1984).
Spouse may be required to apply future earnings against present marital debts. Subsection (2)(c) is not violated solely because the award forces the husband to apply future earnings to retire present debts of the marital estate. In re Faulkner, 652 P.2d 572 (Colo. 1982).
A spouse's contribution to the professional education and career of the other spouse must be considered in the distribution of property pursuant to this section. In re Speirs, 956 P.2d 622 (Colo. App. 1997).
This section does not define "property" but merely specifies that the "marital property" is to be divided "in such proportions as the court deems just". In re Ellis, 36 Colo. App. 234, 538 P.2d 1347 (1975), aff'd, 191 Colo. 317, 552 P.2d 506 (1976).
The legislature intended the term "property" to be broadly inclusive, as indicated by its use of the qualifying adjective "all" in subsection (2) of this section. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977).
There are necessary limits upon what may be considered "property", and the concept as used by the general assembly is other than that usually understood to be embodied within the term. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977).
An insurance policy with no cash surrender value does not represent any asset proper for consideration on the theory that it is "property" which is subject to equitable division between the parties. Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964).
Degree is not property. Where a spouse provides financial support while the other spouse acquires a degree, the degree is not considered property. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977); In re Olar, 747 P.2d 676 (Colo. 1987).
At best, education is an intangible property right, the value of which, because of its character, cannot have a monetary value placed upon it for division between spouses. In re Graham, 38 Colo. App. 130, 555 P.2d 527 (1976), aff'd, 194 Colo. 429, 574 P.2d 75 (1978); In re Olar, 747 P.2d 676 (Colo. 1987).
And is not subject to division under this section. Although a litigant's education is a factor to be considered, among many others, in arriving at an equitable property division and in determining matters of maintenance and child support, it is not property subject to division under this section. In re Graham, 38 Colo. App. 130, 555 P.2d 527 (1976), aff'd, 194 Colo. 429, 574 P.2d 75 (1978); In re Olar, 747 P.2d 676 (Colo. 1987); In re Speirs, 956 P.2d 622 (Colo. App. 1997).
Husband's beneficial interest in discretionary trust is not "property" subject to division as such under this section. In re Rosenblum, 43 Colo. App. 144, 602 P.2d 892 (1979).
Husband's rights in a discretionary trust are to be considered by the court as any other "economic circumstance" of the husband in determining a just division of the marital property pursuant to subsection (1)(c) and as a "relevant factor" in making an award of maintenance under § 14-10-114 (2). In re Rosenblum, 43 Colo. App. 144, 602 P.2d 892 (1979).
Wife's interest in family trust constitutes "property" and is not a "mere expectancy", despite the fact that wife's father must pay the entire net income from the trust to himself during his lifetime and has the discretion to invade the corpus for his own support, care, and maintenance. Because the trust was created during the marriage, wife's interest constitutes a gift that is excepted from the definition of marital property, but appreciation on wife's interest in the trust during the course of the marriage does constitute marital property. In re Balanson, 25 P.3d 28 (Colo. 2001).
Court found husband's vested remainder interest in his father's trust to be a property interest, where father possessed the power to revoke the trust during his lifetime but died without exercising that power. Husband's remainder interest in his father's trust was, therefore, subject to depletion only by exercise of the trustee's right to invade the corpus of the trust for the benefit of husband's mother, which right did not convert husband's vested remainder property interest into a mere expectancy. In re Gorman, 36 P.3d 211 (Colo. App. 2001).
Court found husband's vested remainder interest in his mother's trust to be a property interest, even though the mother, still living at the time of the permanent orders, had the power to revoke the trust during her lifetime. The mother's exercise of her right to revoke is a condition subsequent, and unless the event occurs, husband's interest remains vested. In re Gorman, 36 P.3d 211 (Colo. App. 2001).
A life insurance policy lacking cash surrender value is not "property" since it has not objective, tangible, or vested value that can be divided. McGovern v. Broadstreet, 720 P.2d 589 (Colo. App. 1985).
Discretionary trust corpus cannot be considered the separate property of a beneficiary for purposes of division of property. This is because the beneficiary of such trust has no contractual or enforceable right to income or principal from the trust, cannot force any action by the trustee, cannot assign an interest in the trust, and because such interest cannot be reached by either party's creditors. In re Jones, 812 P.2d 1152 (Colo. 1991).
Income received by the wife from the discretionary trust during the marriage is properly considered a gift and thus not divisible pursuant to subsection (2)(a). In re Jones, 812 P.2d 1152 (Colo. 1991).
Wife's expectancy interest in a discretionary trust should be considered an economic circumstance pursuant to subsection (1)(c). In re Jones, 812 P.2d 1152 (Colo. 1991).
Wife's future anticipated interest in German "social security" benefits is an economic circumstance that can be considered pursuant to subsection (1)(c) in the equitable division of the marital estate. In re Lockwood, 971 P.2d 264 (Colo. App. 1998).
Trial court did not err in concluding that an irrevocable trust of which wife was beneficiary but over which wife had no control over the principal or the income and from which wife had no right to demand or request distributions was not marital property but an "economic circumstance" to be considered in arriving at an equitable property division . In re Pooley, 996 P.2d 230 (Colo. App. 1998).
Vested and matured military retirement pay accrued during all or part of a marriage constitutes marital property subject to equitable distribution in a marriage proceeding. In re Gallo, 752 P.2d 47 (Colo. 1988).
The key to an equitable distribution is fairness, not mathematical precision. Two possible methods of valuation are the present cash value method and the reserve jurisdiction method. In re Gallo, 752 P.2d 47 (Colo. 1988).
The rule that military retirement pay is marital property subject to equitable distribution in a marriage proceeding should be applied prospectively only. In re Wolford, 789 P.2d 459 (Colo. App. 1989).
Trial court, which had personal jurisdiction over husband but lacked the authority to divide the husband's military pension as marital property, did not retain jurisdiction to divide the pension at a later date. Even though final decree provided that trial court had continuing jurisdiction over the action and that the wife would remain entitled to any and all military benefits, the court did not have the authority to divide military pension as a result of subsequent case law declaring such pensions to be marital property. Language in final decree refers only to the court's continuing authority to divide property as such court had on the date of the final decree. In re Booker, 833 P.2d 734 (Colo. 1992).
Federal act specifying whether the court has jurisdiction over a military member's pension preempts state rules of procedure governing jurisdiction. In re Booker, 833 P.2d 734 (Colo. 1992).
Trial court did not err in its conclusion that military voluntary separation incentive payments constitute marital property subject to distribution. Compensation that is deferred until after the dissolution of marriage, but fully earned during the marriage, is marital property. In re Shevlin, 903 P.2d 1227 (Colo. App. 1995).
Cash received during the marriage pursuant to an employment contract which provides for payments in installments in advance of work is cash on hand and therefore marital property subject to division and not future income. In re Anderson, 811 P.2d 419 (Colo. App. 1990).
Compensation deferred until after the dissolution, but earned fully during the marriage, is marital property. Wife's performance award for her performance as an employee during the marriage was marital property, subject to equitable division. In re Huston, 967 P.2d 181 (Colo. App. 1998).
Although the interest of the policy owner of a life insurance policy constitutes marital property, the interest of the named beneficiary is only an expectancy and vests no present property interest in the beneficiary. Gorman-English v. Estate of English, 849 P.2d 840 (Colo. App. 1992).
A life insurance policy lacking cash surrender value is not "property" since it has no objective, tangible, or vested value that can be divided in a dissolution action. In re Foottit, 903 P.2d 1209 (Colo. App. 1995).
Spouse's disability pension payments do not constitute marital property and are not subject to distribution in a dissolution of marriage action. Such a distribution would contravene the legislative intent that only the beneficiary receive the disability benefits. In re Peterson, 870 P.2d 630 (Colo. App. 1994).
A stock option that is not vested does not constitute property. Only a vested stock option is "property" subjection to a determination of whether it was granted in consideration of past or future services for purpose of ascertaining it's marital or separate nature. In re Huston, 967 P.2d 181 (Colo. App. 1998).
Gifts made from one spouse to the other during the course of the marriage cannot be presumed to be gifts, nor do they necessarily constitute marital property. To qualify as a "gift", a transfer of property must involve a simultaneous intention to make a gift, delivery of the gift, and acceptance of the gift. In re Balanson, 25 P.3d 28 (Colo. 2001).
The division of property in a divorce action is a matter within the sound discretion of the trial court, and its judgment will not be disturbed on review unless it is shown that the division made was an abuse of discretion. Granato v. Granato, 130 Colo. 439, 277 P.2d 236 (1954); Todd v. Todd, 133 Colo. 1, 291 P.2d 386 (1955); Britt v. Britt, 137 Colo. 524, 328 P.2d 947 (1958); Drake v. Drake, 138 Colo. 388, 33 P.2d 1038 (1959); Bell v. Bell, 150 Colo. 174, 371 P.2d 773 (1962); Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149 (1962); Harvey v. Harvey, 150 Colo. 449, 373 P.2d 304 (1962); Liggett v. Liggett, 152 Colo. 110, 380 P.2d 673 (1963); Bell v. Bell, 156 Colo. 513, 400 P.2d 440 (1965); Larrick v. Larrick, 30 Colo. App. 327, 491 P.2d 1401 (1971); Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972); Jekot v. Jekot, 32 Colo. App. 118, 507 P.2d 473 (1973); Rayer v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973); In re Armbeck, 33 Colo. App. 260, 518 P.2d 300 (1974); Harrod v. Harrod, 34 Colo. App. 172, 526 P.2d 666 (1974); In re Icke, 35 Colo. App. 60, 530 P.2d 1001 (1974), aff'd, 189 Colo. 319, 540 P.2d 1076 (1975); Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976); In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977); In re Carruthers, 40 Colo. App. 278, 577 P.2d 773 (1977); In re Schulke, 40 Colo. App. 473, 579 P.2d 90, cert. denied, 439 U.S. 861, 99 S. Ct. 181, 56 L. Ed.2d 170 (1978); In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979); In re Garcia, 638 P.2d 848 (Colo. App. 1981); In re Hoffman, 650 P.2d 1344 (Colo. App. 1982); In re Faulkner, 652 P.2d 572 (Colo. 1982); In re Mann, 655 P.2d 814 (Colo. 1982); In re Lester, 647 P.2d 668 (Colo. App. 1982); In re Seely, 689 P.2d 1154 (Colo. App. 1984); In re Sarvis, 695 P.2d 772 (Colo. App. 1984); In re Hulse, 727 P.2d 876 (Colo. App. 1986); In re Price, 727 P.2d 1073 (Colo. 1986); In re McGinnis, 778 P.2d 281 (Colo. App. 1989); In re Stumpf, 932 P.2d 845 (Colo. App. 1996).
The division of marital property is committed to the sound discretion of the trial court and there is no rigid mathematical formula that the court must adhere to. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977).
Judiciary not to interfere with "division" of property. Whatever the role of judicial solicitude in the division of property, it will not be permitted to interfere with the statutory command that the property be literally and effectively "divided". In re Gehret, 41 Colo. App. 162, 580 P.2d 1275 (1978).
Property division hearings are equitable in nature and trial courts have broad discretion to fashion an equitable division of the parties' property in a dissolution proceeding. In re Wells, 850 P.2d 694 (Colo. 1993).
Under the authority of this section, the trial court is clearly limited in adjusting and dividing the assets of the husband and wife as between them alone. Giambrocco v. Giambrocco, 161 Colo. 510, 423 P.2d 328 (1967).
Under this section authorizing a "division of property" in a divorce action, the court may decree a transfer from the wife to the husband, in a proper case, even of property which he has conveyed to her. Ikeler v. Ikeler, 84 Colo. 429, 271 P. 193 (1928).
It was proper for the trial court to consider contributions of parties to the increase in or accumulation of assets by means other than direct contribution of capital. Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971).
Where the parties to a divorce action agreed to submit the partition of real property issue to the court, rather than incur the expense of a formal statutory partition proceeding, the court, under its broad powers, could have declined to partition at that point, and, in the absence of a final agreement concerning the property, it could either have sold the property and divided the proceeds, or it could have declared that each party would henceforth be a tenant in common. Either course would have been a fair and equitable division of the property. Jekot v. Jekot, 32 Colo. App. 118, 507 P.2d 473 (1973).
Judicial notice of general economic trends, such as the inflationary trend since the time of the marriage, was proper in considering the disposition of property. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).
A decree of a trial court permitting a wife to keep her separate inherited property and awarding her a division of property acquired through the joint efforts of the parties, where no alimony is requested or awarded, does not constitute an abuse of discretion. Green v. Green, 139 Colo. 551, 342 P.2d 659 (1959).
Where stocks and securities acquired solely by a defendant's mother out of her inheritance, and earnings were held in joint tenancy with defendant, it was error for the trial court to allot one half of the value thereof to defendant in making a division of property as between husband and wife. Stephenson v. Stephenson, 134 Colo. 96, 299 P.2d 1095 (1956).
Non-marital disability pension payments may be considered as an economic circumstance in determining maintenance. In re Peterson, 870 P.2d 630 (Colo. App. 1994).
In a property settlement proceedings in a divorce action, where the evidence disclosed that the wife had contributed substantially to the family income over a period of years, which enabled the husband to devote virtually all of his earnings to assisting his mother in preserving a valuable piece of business property, through whom he received a substantial inheritance, which he would not have received but for the wife's efforts and contributions during the period, it was error for the court to fail to take such inheritance into consideration in determining the property settlement between the parties. Lee v. Lee, 133 Colo. 128, 293 P.2d 293 (1956).
A court order empowering the wife to make the selection of the husband's stocks was erroneous because the division is a function requiring the exercise of judicial discretion, and the danger in delegating full discretion to the wife was that her selection could work to an unfair advantage for her and a decided detriment to the husband's holdings. Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606 (1969).
Where properties awarded to the husband were heavily encumbered, and the businesses awarded financially involved, and in addition he was required to pay off a large indebtedness on property awarded to wife plus substantial support for children, evidence offered was insufficient to support such burdensome order. Bell v. Bell, 150 Colo. 174, 371 P.2d 773 (1962).
Where under facts disclosed, order of division of property in divorce action was so manifestly unfair, inequitable, and unconscionable as to amount to an abuse of discretion, it will be ordered vacated and set aside. Bell v. Bell, 150 Colo. 174, 371 P.2d 773 (1962).
No abuse of discretion. In and of itself, the award of 35 percent of the marital assets is not an abuse of discretion. In re Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975).
And although distribution was not equal, it certainly was equitable, and thus well within the court's discretion. In re Gercken, 706 P.2d 809 (Colo. App. 1985).
Award of interest within trial court's discretion. Whether interest should be allowed on a promissory note which represents a property division award upon dissolution of marriage is a matter which lies within the discretion of the trial court based on all of attendant circumstances. In re Lucas, 631 P.2d 1175 (Colo. App. 1981).
Trial court is required to consider the economic circumstances of the spouses at the time of any hearing relating to the division of marital property. In re Wells, 850 P.2d 694 (Colo. 1993).
Marital partnership interest made subject to "charging order" pursuant to § 7-60-128 as part of property division is not an abuse of discretion, nor was it error to leave the actual amount recoverable to determination in a separate action, although property division had to be set aside because it could be unconscionable. In re Weiss, 695 P.2d 778 (Colo. App. 1984).
Where a wife was awarded a final divorce decree without alimony and given control of a jointly owned taxicab business, it was held that there was ample evidence in the record to support the finding of fact by the trial court that wife did contribute to and was entitled to a one-half interest in the business since it appeared that the operations, continued under her guidance and later under a receiver with her assistance, owed their successful outcome to these efforts. Shreyer v. Shreyer, 112 Colo. 281, 148 P.2d 1003 (1944).
Award of a share of benefits of husband's vested pension plan through the use of installment payments when lump-sum distribution at the time of decree was impractical is within the discretion of court. In re Blake, 807 P.2d 1211 (Colo. App. 1990).
Trial court's use of two different methods to distribute the parties' two pensions, was within the sound discretion of the trial court. In re Kelm, 912 P.2d 545 (Colo. 1996).
The trial court did not abuse its discretion in awarding the property and the proceeds therefrom to plaintiff where evidence showed that he furnished substantially all the purchase money, but allowed title to be taken in his wife's name. Bieber v. Bieber, 112 Colo. 229, 148 P.2d 369 (1944).
Where the husband asserted the court abused its discretion in awarding the real property to the wife without having first determined its value, there was no abuse of discretion, because before value becomes important the court must first determine whether the property is subject to division. Larrabee v. Larrabee, 31 Colo. App. 493, 504 P.2d 358 (1972).
Where the husband was on active duty as a petty officer in the navy during the five year duration of the marriage, and the court found that his participation, if any, in the management of the land given to the wife prior to the marriage was adequately compensated by the income received therefrom, and the court further found that the gift from the wife's mother was intended primarily as a gift to her own children and that the husband was not entitled to retain any interest in the land under the circumstances of this case, the award of the property to the wife, based on these findings was not an abuse of discretion. Larrabee v. Larrabee, 31 Colo. App. 493, 504 P.2d 358 (1972).
Court abused its discretion when it acknowledged the parties' relatively equal contributions to the marriage and marital property, yet awarded the wife only the benefits of the increased value of the property without any responsibilities for its burdens. Under these circumstances, equity requires that the wife share a part of the debt incurred on the home during the marriage as well as a part of the increase in the home's value. In re Kiefer, 738 P.2d 54 (Colo. App. 1987).
It was an abuse of discretion to give the wife ownership of the couple's percentage of a partnership, granting one-third to the husband only upon full or partial distribution and holding the husband responsible for payment of his share of capital calls and any debt related to the partnership interest. In re Paul, 821 P.2d 925 (Colo. App. 1991).
Once initial order is entered, subsequent hearings are not merely corrections of errors committed by the trial court in the first proceeding. In re Wells, 850 P.2d 694 (Colo. 1993).
Separation agreements and antenuptial agreements are separate and distinct legal documents. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev' d on other grounds, 653 P.2d 728 (Colo. 1982).
Antenuptial contracts may be rescinded or modified by the mutual consent of the parties and whether such a contract has been rescinded by mutual consent is a question of fact. In re Young, 682 P.2d 1233 (Colo. App. 1984).
Spouses-to-be have right to enter into antenuptial agreements which contemplate the possibility of dissolution. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev' d on other grounds, 653 P.2d 728 (Colo. 1982).
Agreement not bar to claim for maintenance unless expressly relinquished. In the absence of any reference in an antenuptial agreement to a relinquishment of the right to maintenance, the agreement does not bar the wife's claim for maintenance. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).
As a general principle, antenuptial agreements will be given effect in this state. In re Thompson, 39 Colo. App. 400, 568 P.2d 98 (1977).
Antenuptial agreements, as a matter of law, do not violate public policy and are not void ab initio in Colorado. In re Newman, 653 P.2d 728 (Colo. 1982).
Antenuptial agreements, absent fraud, are binding on the parties according to their terms, and the judiciary cannot relieve the parties from the obligations thereof. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).
Otherwise legislative provisions control. When an antenuptial agreement does not provide for the distribution of marital property upon the dissolution of the marriage, then the applicable legislative provisions are controlling. In re Thompson, 39 Colo. App. 400, 568 P.2d 98 (1977).
Section 14-10-112 conscionability review not extended to antenuptial agreements. The conscionability review of separation agreements, pursuant to § 14-10-112, does not extend to antenuptial agreements. In re Newman, 653 P.2d 728 (Colo. 1982).
Burden of proof is on party seeking to avoid antenuptial contract. In re Ingels, 42 Colo. App. 245, 596 P.2d 1211 (1979); In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).
The burden of proving failure to disclose is upon the party contesting the validity of the antenuptial agreement . In re Ross, 670 P.2d 26 (Colo. App. 1983).
Failure to provide wife with independent counsel does not render antenuptial agreement void per se. In re Ingels, 42 Colo. App. 245, 596 P.2d 1211 (1979).
Agreement not set aside solely because bulk of marital assets go to husband. In re Ingels, 42 Colo. App. 245, 596 P.2d 1211 (1979).
Itemized property list not necessary for agreement. Where the amount of the husband's assets was not materially misstated, his failure to supply an itemized list was not fatal to the validity of an antenuptial agreement. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).
While it would have been preferable for the trial court to have entered specific values for each item in a property division, reversal was not required where it could determine that the property division made was not an abuse of discretion. In re Warrington, 44 Colo. App. 294, 616 P.2d 177 (1980).
Where antenuptial agreement is unambiguous as to treatment of increases in value of separate property, the court is required to enforce the agreement according to its terms . In re Vickers, 686 P.2d 1370 (Colo. App. 1984).
Where antenuptial agreement was silent on matter of attorney fees, the awarding of such fees was controlled by § 14-10-119. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev' d on other grounds, 653 P.2d 728 (Colo. 1982).
For holding as to enforceability of prenuptial agreement which conceived disposition of property , see Franks v. Wilson, 369 F. Supp. 304 (D. Colo. 1973), appeal dismissed, 415 U.S. 986, 94 S. Ct. 1583, 39 L. Ed.2d 884, rehearing denied, 416 U.S. 975, 94 S. Ct. 2004, 40 L. Ed.2d 565 (1974).
Property must be classified as separate or marital. Under the requirements of this section, it is essential for the court to classify the property of the parties as either separate or marital. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).
This section mandates that separate property remain separate, subject to the narrow exception that any increase in value during marriage is marital property. In re Campbell, 43 Colo. App. 72, 599 P.2d 275 (1979).
In order to obtain status of separate property under this section, it must appear that the property was acquired prior to marriage with the intent that it become the separate property of husband. In re Altman, 35 Colo. App. 183, 530 P.2d 1012 (1974).
Property not "separate" because of spouse's lack of interest or concern. Property titled in the name of one spouse that was acquired during the parties' marriage cannot be considered nonmarital property merely because of a course of conduct by the other spouse showing a lack of interest or concern for property. In re Heim, 43 Colo. App. 511, 605 P.2d 485 (1979).
The classification of increases in separate property as marital property is a substantial departure from prior law wherein such increases were generally classed as separate property. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).
When award of increases in separate property to be made. The award of increases in separate property is to be made after considering all of the factors stated in subsection (1)(a) through (1)(d), and not just contribution. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977); In re Seewald, 22 P.3d 580 (Colo. App. 2001).
It is proper for a court to consider the depletion of separate property for marital purposes pursuant to subsection (1)(d); however, the statute does not require that the depletion of separate property for nonmarital purposes be considered and the trial court's failure to make findings as to this factor was harmless error. In re Burford, 26 P.3d 550 (Colo. App. 2001).
Where court without authority to order sale of home. Where home was separate property of husband before marriage and after dissolution of marriage, the court was without authority to order sale of home despite fact that increase in the value of home during marriage was marital property. In re Campbell, 43 Colo. App. 72, 599 P.2d 275 (1979).
Money accumulated in pension fund prior to marriage should be considered "separate property". In re Rogers, 709 P.2d 1383 (Colo. App. 1985).
Husband's worker's compensation settlement is separate property to the extent it compensates for post-dissolution loss of income or earning capacity. In re Breckenridge, 973 P.2d 1290 (Colo. App. 1999).
Insurance proceeds acquired by husband during marriage constituted a gift and was properly classified as separate property. In re Sharp, 823 P.2d 1387 (Colo. App. 1991).
Shares of stock owned by husband at the time of the marriage that were later involved in a stock split during the marriage were properly considered husband's separate property except to the extent the shares appreciated during the marriage. In re Renier, 854 P.2d 1382 (Colo. App. 1993).
In order for premarital property to retain its separate character, the property must be traceable to specific assets. In the absence of evidence tracing shares of stock obtained in a stock split during the marriage to the shares husband owned at the time of the marriage, the additional shares should not have been set apart as husband's separate property where husband combined the additional shares with other shares acquired during the marriage and many of the combined shares were sold. In re Renier, 854 P.2d 1382 (Colo. App. 1993).
Trial court did not abuse its discretion when it awarded the wife fifty percent of the husband's disposable retirement pay where the ruling was rationally based on considerations of the wife's marital contributions during the husband's military career and the fact that the wife had no survivor benefits in the event of the husband's death. In re Sinkovich, 830 P.2d 1101 (Colo. App. 1992).
Trial court erred in setting apart to wife as her separate property the portions of investment traceable to income generated from trust. In re Foottit, 903 P.2d 1209 (Colo. App. 1995).
Requiring a party to execute a noncompete agreement is within court's authority where agreement is necessary to protect goodwill of business awarded to other party and agreement is otherwise valid under § 8-2-113. In re Fischer, 834 P.2d 270 (Colo. App. 1992).
Gifts made from one spouse to the other during the course of the marriage cannot be presumed to be gifts, nor do they necessarily constitute marital property. To qualify as a "gift", a transfer of property must involve a simultaneous intention to make a gift, delivery of the gift, and acceptance of the gift. In re Balanson, 25 P.3d 28 (Colo. 2001).
Finding that home and car were wife's separate property upheld. In re Bartolo, 971 P.2d 699 (Colo. App. 1998).
The purpose of the division of marital property is to allocate to each spouse what equitably belongs to him or her. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977).
Weighing of factors set forth in this section is within the sound discretion of the trial court. In re Casias, 962 P.2d 999 (Colo. App. 1998).
The court had the discretion to enter an equitable division of property where the court had retained jurisdiction and a period had expired for meeting certain conditions set forth in an agreement between the parties and such conditions had not been met. In re Ebel, 874 P.2d 406 (Colo. App. 1993).
Division gives each party some attributes of ownership. The efficacy of a division of property in a dissolution of marriage action results from placing in the hands of each party a definable or ascertainable portion of at least some of the attributes of ownership. In re Cehret, 41 Colo. App. 162, 580 P.2d 1275 (1978).
Right to property division inchoate. In dissolution of marriage proceedings, a wife may be entitled to a division of the husband's property, and that right, prior to the dissolution action and possibly subject to an exception or two, is completely inchoate. In re Questions Submitted by United States Dist. Court, 184 Colo. 1, 517 P.2d 1331 (1974).
Property to be transferred is not determined at time of filing. At the time of the filing of the dissolution of marriage action in which the division of property will be later determined, a vesting takes place, and this interest which has vested is inchoate only in the sense that, prior to the division, the property to be transferred to the wife has not yet been determined. In re Questions Submitted by United States Dist. Court, 184 Colo. 1, 517 P.2d 1331 (1974).
At time divorce action is filed there vests in wife her interest in property in name of husband. In re Questions Submitted by United States Dist. Court, 184 Colo. 1, 517 P.2d 1331 (1974).
Justice requires that the joint accumulations of a husband and wife, or property which was acquired during marriage or added to through the joint efforts of both spouses, should be considered for equitable division on termination of the marriage. Kalcevic v. Kalcevic, 156 Colo. 151, 397 P.2d 483 (1964).
Specific circumstances and feelings of each party are appropriate considerations in determining which specific items of property should be sold, or alternatively, distributed to a particular party. In re Woodrum, 618 P.2d 732 (Colo. App. 1980).
Highly relevant factor to be considered by court in effecting just division of marital property is the extent to which the division will promote the objective of providing for each party's financial needs without maintenance. In re Jones, 627 P.2d 248 (Colo. 1981).
Value of separate property considered. The court must consider all of the many relevant facets of the situation of the parties, including the value of property set apart to each spouse. In re Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975).
Upon remand to redistribute marital property, trial court may consider the economic circumstances of each spouse. In re Wells, 850 P.2d 694 (Colo. 1993).
Award of additional $6000 for "recreational opportunities" for children was fairly embraced within the factors to be considered by court in dividing the marital property and did not create a separate "recreational fund" for the needs of the children. In re Jackson, 698 P.2d 1347 (Colo. 1985).
Contribution of spouse to acquisition of specific property is not a factor to be considered in determining whether that property is part of the marital estate, but this may be considered in determining the shares allocated to each spouse. In re Carruthers, 40 Colo. App. 278, 577 P.2d 773 (1977).
Decrease in value of separate property. Under subsection (1)(d), the court may consider as a relevant factor in dividing marital property the decrease in the value of separate property. In re Talarico, 36 Colo. App. 389, 540 P.2d 1147 (1975).
When applying subsection (1)(d), the court must consider an increase in the value of separate property without reference to the fact that the increase has just previously been classified as marital property under subsection (4). The trial court did not err in finding that there was an increase in the value of the husband's separate property during the marriage despite the fact that there was an aggregate decrease in the value of such property. In re Burford, 26 P.3d 550 (Colo. App. 2001).
Value of retirement account considered. The public employees' retirement association's interest of the husband or his estate is not subject to divestment by death or discharge. At some time, he or his estate must receive, at the very minimum, the amount of accumulated deductions in his individual account. His rights have a presently determinable cash surrender value equal to his salary deductions which otherwise would have been available for the use of the parties during the marriage. Even though the husband's interest in the fund is, by its very nature, incapable of division in kind, the value of that interest was properly taken into account in a marital property division. In re Pope, 37 Colo. App. 237, 544 P.2d 639 (1975).
Because a 401(k) account is a defined contribution plan, the court must determine the marital interest; but unlike a defined benefit plan, it need not consider future appreciation. In re Casias, 962 P.2d 999 (Colo. App. 1998).
When one spouse causes title to be placed jointly with the other spouse, a gift is presumed, and the burden to show otherwise is upon the donor. In re Moncrief v. Moncrief, 36 Colo. App. 140, 535 P.2d 1137 (1975).
Transfer during the marriage by one spouse to both spouses is understood to evidence a transfer to the marital estate in the absence of appropriate evidence that the property was excluded from being marital property by a valid agreement of the parties. The exception from the definition of marital property for any property acquired by gift does not apply to such transfer. In re Stumpf, 932 P.2d 845 (Colo. App. 1996).
Where separation agreement has been set aside, property transferred in accordance with the agreement was not excluded from the division of the marital property. In re Bisque, 31 P.3d 175 (Colo. App. 2001).
Presumption of gift not overcome. Parties' explanation that title to their home was placed in joint tenancy so as to avoid inheritance taxes does not overcome the presumption that a gift occurred; it merely expresses a reason why the gift was made. In re Moncrief v. Moncrief, 36 Colo. App. 140, 535 P.2d 1137 (1975).
Resembles division of property by co-owners rather than conveyance. Transfer of property by husband to his former wife in fulfillment of a property settlement agreement entered into by the parties and approved by the court granting the divorce is a recognition of a "species of common ownership" of the marital estate by the wife resembling a division of property between co-owners and is not a transfer which resembles a conveyance by the husband for the release of an independent obligation owed by him to the wife. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1973), aff'd, 523 F.2d 853 (10th Cir. 1975); In re Questions Submitted by United States Dist. Court, 184 Colo. 1, 517 P.2d 1331 (1974).
Property acquired before legal separation deemed marital. Property acquired subsequent to a marriage but after the parties have separated without a decree of legal separation is not excepted from "marital property" by subsection (2). In re Carruthers, 40 Colo. App. 278, 577 P.2d 773 (1977); In re Huff, 834 P.2d 244 (Colo. 1992).
Where parties lived apart for over eleven years without a decree of legal separation or a valid agreement for exclusion of property, property acquired during that period was marital property. In re Huff, 834 P.2d 244 (Colo. 1992).
The presumption that property acquired by either spouse after marriage is marital property may be overcome by establishing that the property in question was acquired by a method listed in subsection (2). Assets not falling with the specific definition of separate property are deemed to be marital in nature subject to equitable division by the court. In re McCadam, 910 P.2d 98 (Colo. App. 1995); In re Seewald, 22 P.3d 580 (Colo. App. 2001).
Appreciation of separate property during the course of the marriage is considered marital property and such increase is subject to division under conditions set forth in this section. In re Fleet, 701 P.2d 1245 (Colo. App. 1985).
Appreciation accrued during period of reconciliation to be shared. The husband is entitled to an equitable share in the total amount of appreciation that accrued during a period of reconciliation after the wife became sole owner of the family home. In re Reeser, 635 P.2d 930 (Colo. App. 1981).
Where trial court failed to determine if there had been commingling of husband's premarital assets or if any marital appreciation in any of the trust assets had occurred and should have been included in the estate, property division could not be evaluated to determine whether it was inequitable. In re Seewald, 22 P.3d 580 (Colo. App. 2001).
Value of marital property sold by a spouse prior to filing of divorce action where spouse kept proceeds for himself is properly considered in dividing marital estate. In re Paulsen, 677 P.2d 1389 (Colo. App. 1984).
Partnership property divided according to spouse's contribution. A trial court's division of partnership property can be based upon the contribution made by each party to the purchase of the property. In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979).
In order for partnership property to be considered as other than marital property under subsection (2)(d), the parties must have expressly agreed that the partnership assets would not become marital property. Otherwise, the question is one of intent of the parties, to be found as a fact by the trial court. In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979).
Court can award any rights party may have resulting from existence of corporate assets. Although the court cannot award corporate assets to individual parties in a dissolution proceeding, the court can award to a party any rights he may have because of the existence of corporate assets. In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980).
Where husband's rights to commissions arose prior to the date of hearing, they constituted "marital property" and were subject to division. In re Johnson, 40 Colo. App. 250, 576 P.2d 188 (1977).
Money husband received in lieu of retirement benefits upon mandatory separation from army constituted marital property subject to distribution under the terms of this section. In re Moore, 35 Colo. App. 280, 531 P.2d 995 (1975).
Residence acquired in anticipation of marriage is marital property. Where a family residence is selected and acquired within a few days of the parties' marriage in contemplation of that marriage, and the equity accumulated therein results from contributions by both parties, the court does not err in treating the residence and all equity obtained therein as marital property. In re Altman, 35 Colo. App. 183, 530 P.2d 1012 (1974).
Home purchased with wife's proceeds from sale of home owned prior to marriage is not. In view of evidence that the family home was purchased by the wife with the proceeds of the sale of a home which she owned prior to the marriage, the home was not "marital property" within the meaning of this statute. In re Armbeck, 33 Colo. App. 260, 518 P.2d 300 (1974).
Value of good will of spouse's business deemed marital property. In a division of marital property, the value of good will incident to husband's dental practice, which is an asset acquired during his marriage, must be considered as marital property. In re Nichols, 43 Colo. App. 383, 606 P.2d 1314 (1979).
Funds withdrawn by husband from joint bank account prior to wife's filing of petition for dissolution are "marital property" and should have been taken into account by trial court in making its property distribution, notwithstanding that the wife could not trace the funds after the withdrawal. In re Posinoff, 683 P.2d 377 (Colo. App. 1984).
Personal injury settlement offer, even if just for pain and suffering, is marital property if it arises from an accident which occurred during marriage. In re Fjeldheim, 676 P.2d 1234 (Colo. App. 1983).
Trial court erred in classifying a claim for personal injury protection (PIP) benefits as a marital asset where a claim had not been submitted to the insurance company as of the date of the hearing. In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev' d in part on other grounds, 25 P.3d 28 (Colo. 2001).
Accounts receivable constituted marital property. In re Bayer, 687 P.2d 537 (Colo. App. 1984).
Appreciation of premarital property which is realized during marriage is subject to division upon dissolution of marriage. In re Van Genderen, 720 P.2d 593 (Colo. App. 1985).
Reorganization under chapter 11 of bankruptcy code does not necessarily establish a business held premaritally by husband as worthless, so that entire sum received from sale of business's subsidiary stock and liquidation of business constituted marital property for purposes of division of property pursuant to dissolution. In re Van Genderen, 720 P.2d 593 (Colo. App. 1985).
Shares in mutual fund were "marital property" subject to equitable division, notwithstanding that funds used to purchase shares may have originally been husband's separate property, where evidence established that husband's intent in purchasing shares was to make a joint investment with wife and that he intended that shares should pass to wife upon his death. In re Meisner, 715 P.2d 1273 (Colo. App. 1985).
Full increase in value of parties' separate property was properly treated as marital property. In re Young, 682 P.2d 1233 (Colo. App. 1984).
Property acquired during first marriage not marital property. Absent evidence of a contrary intent, property acquired during a first marriage between the parties and before their remarriage may not be declared marital property. In re Stedman, 632 P.2d 1048 (Colo. App. 1981).
Spouse's interest in a vested but unmatured employer-supported pension plan is marital property to the extent such plan has been funded by either employee or employer contributions during the marriage and is, therefore, subject to equitable distribution in dissolution proceeding. In re Grubb, 745 P.2d 661 (Colo. 1987); In re Blake, 807 P.2d 1211 (Colo. App. 1990).
Marital property subject to division does not include property acquired after the dissolution; however, compensation that is deferred until after the dissolution, but fully earned during the marriage, is marital property. In re Vogt, 773 P.2d 631 (Colo. App. 1989); In re Anderson, 811 P.2d 419 (Colo. App. 1990); In re Miller, 888 P.2d 317 (Colo. App. 1994).
Before a trial court can make an equitable distribution of pension rights, it must first determine the present value of such rights . In re Gavito, 794 P.2d 1377 (Colo. App. 1990).
Husband's vested, employer-supported pension plan held to be "marital property". In re Nelson, 746 P.2d 1346 (Colo. 1987); In re Blake, 807 P.2d 1211 (Colo. App. 1990).
Husband's nonvested military pension held to be marital property. In re Beckman, 800 P.2d 1376 (Colo. App. 1990).
Trial court did not err in ruling that it had no authority to distribute the military retirement pay that husband received during the year that the parties were separated where there was no evidence presented concerning the amount received during that period nor any evidence that either party had dissipated any funds that had been received. In re Riley-Cunningham, 7 P.3d 992 (Colo. App. 1998).
Trial court was not preempted by federal law from characterizing special separation benefits (SSB) received by former husband upon his voluntary discharge from the air force as marital property and from awarding a portion of them to wife. The SSB had more of the characteristics of a deferred compensation plan than a severance payment, and, therefore, constituted marital property subject to distribution. In re McElroy, 905 P.2d 1016 (Colo. App. 1995); In re Heupel, 936 P.2d 561 (Colo. 1997).
SSB benefit paid out after entry of the decree held not to be a "post-decree benefit". Hence, trial court's action in awarding a portion of the benefit to wife as marital property did not constitute a reopening of the decree, but rather an appropriate action to enforce the decree which incorporated the parties' separation agreement. In re Heupel, 936 P.2d 561 (Colo. 1997).
Husband's interest in contingency attorney fees which were earned during the marriage constitutes marital property subject to division. However, any portion of the fees earned after dissolution should be subject to the "reserve jurisdiction method" whereby the trial court retains jurisdiction to distribute payments when the contingent funds are received. In re Vogt, 773 P.2d 631 (Colo. App. 1989).
An unliquidated personal injury claim is marital property within the meaning of this section. The trial court should consider the actual effect that personal injury had on the marital estate in determining what the equitable share of the claim should be, and the court is required to make specific findings supporting the division of such claim. In re Fields, 779 P.2d 1371 (Colo. App. 1989), cert. denied, 781 P.2d 1040 (Colo. 1989).
Assets which consist of amounts received in settlement of husband's personal injury claim and wife's loss of consortium claim are marital property and should be distributed by the court after consideration of the needs and circumstances of the parties. In re Simon, 856 P.2d 47 (Colo. App. 1993).
Stock options owned by husband at the time of marriage but exercised during the marriage using marital funds are presumed to be marital property in the absence of a showing that husband used separate property, such as money he received from an inheritance, to exercise the options. In re Renier, 854 P.2d 1382 (Colo. App. 1993).
Husband's right to severance pay as a substitute for a loss of future wages does not constitute marital property. In re Holmes, 841 P.2d 388 (Colo. App. 1992).
To the extent an employee stock option is granted in consideration of past services, the option may constitute marital property when granted. On the other hand, an employee stock option granted in consideration of future services does not constitute marital property until the employee has performed those future services. In re Miller, 915 P.2d 1314 (Colo. 1996).
Restricted stock options constitute marital property in their entirety where they represent a form of deferred compensation because husband had already earned the right to receive those shares. That husband's full enjoyment of the benefit is conditioned on his remaining an employee affects the present value of the restricted stock shares, not their marital nature. In re Miller, 915 P.2d 1314 (Colo. 1996).
A trial court has discretion to apply the "time rule" formula to the division of stock options acquired during the marriage or to reserve jurisdiction to distribute the stock options if and when they are exercised. In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev' d in part on other grounds, 25 P.3d 28 (Colo. 2001).
Employee stock options constitute property only when the employee has a presently enforceable right to the options, regardless of whether the options are presently exercisable. In re Balanson, 25 P.3d 28 (Colo. 2001).
Future disability income of husband based upon disability insurance purchased during marriage with marital funds is marital property. In re Simon, 856 P.2d 47 (Colo. App. 1993).
Trial court erred in setting apart to wife as her separate property the portions of investment traceable to income generated from trust. In re Foottit, 903 P.2d 1209 (Colo. App. 1995).
Mechanism employed by the court for dividing the marital estate is a matter within the trial court's discretion. In re Dickey, 658 P.2d 276 (Colo. App. 1982).
Property order not terminable upon remarriage. Court order constituting an adjustment of property rights between a former husband and wife did not terminate upon remarriage of wife. Greer v. Greer, 32 Colo. App. 196, 510 P.2d 905 (1973).
Share of marital estate contingent on remaining alive. Court cannot make a portion of husband's share of the marital estate contingent on his remaining alive. In re Paulsen, 677 P.2d 1389 (Colo. App. 1984).
Home to spouse with child custody. Subsection (1)(c) makes it clear that it is desirable to award the family home to the spouse having custody of the children. In re Anderson, 37 Colo. App. 55, 541 P.2d 1274 (1975).
Subsection (3) of this section provides that possession of title is not dispositive of the method of distribution of marital property. In re Thompson, 39 Colo. App. 400, 568 P.2d 98 (1977).
Intent evidenced that property no longer in joint tenancy. An order for the sale of marital property and distribution of the proceeds evidences an intent that the property is no longer to be held in joint tenancy. Gaskie v. Hugins, 640 P.2d 248 (Colo. App. 1981).
Order charging husband with selling property within one year effectively divided the marital property as of the date of the decree. In re Weaver, 39 Colo. App. 523, 571 P.2d 307 (1977).
Court ordered conveyance of separate property to wife or sale of both non-marital and marital property is violative of statute unless there is no other way to value and divide the property equitably. In re Sarvis, 695 P.2d 772 (Colo. App. 1984).
Where the husband's expenditures and labor enabled the wife to invest a considerable percentage of her income, they should be considered as contributions to the increase in their joint, and her several, property. Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971).
Promissory note between the husband and wife and the principal due thereunder, being property acquired in exchange for property acquired prior to the marriage, were correctly treated as wife's separate property. Accrued interest should be treated as marital property and the interest payable as a marital debt, while interest accruing after the date of the decree is the wife's separate property. In re McCadam, 910 P.2d 98 (Colo. App. 1995).
Trial court lacked jurisdiction over the securities owned by the parties' children. However, trial court may consider the securities as a factor in determining how to allocate between the parties any marital debt related to the children's education. In re Gorman, 36 P.3d 211 (Colo. App. 2001).
A trial court, in ordering a division of property, cannot award to the divorced wife a share in property which might be acquired by the ex-husband after the order for a division of property has been made. Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964).
Courts cannot divide property acquired after hearing or decree. Although courts must divide property on the basis of conditions existing at the date of the hearing or decree, they cannot consider the division of property which the parties may acquire afterwards. In re Johnson, 40 Colo. App. 250, 576 P.2d 188 (1977).
A trial court cannot award to one spouse in a dissolution a share in property which might be acquired by the other spouse after the order for division of property has been made. In re Ward, 657 P.2d 979 (Colo. App. 1982).
Market value of real property in dispute is standard adopted by the general assembly. In re Lord, 626 P.2d 698 (Colo. App. 1980), appeal dismissed, 653 P.2d 385 (Colo. 1982).
Necessity of finding current value of all property. Generally, in making a division of property, the court must find the approximate current value of all property owned by the parties, as well as the value of separate property at the time of the marriage or at the time of acquisition, if after marriage. However, where the court determines the percentage ownership each party has in the marital property, and that percentage is not an issue on appeal, the failure to make such findings of current value is not necessarily erroneous. In re Weaver, 39 Colo. App. 523, 571 P.2d 307 (1977).
This section expressly requires that property be valued as of the date of the dissolution of the marriage or as of the date of the hearing on disposition of the property if such hearing precedes the date of dissolution. This provision is mandatory, and the only exception is that the marital property dissipated before dissolution of the marriage can be valued as of the date the property last existed. In re Hunt, 909 P.2d 525 (Colo. 1995); In re Finer, 920 P.2d 325 (Colo. App. 1996); In re Lockwood, 971 P.2d 264 (Colo. App. 1998).
The trial court did not have discretion to create, for equitable purposes, a fictitious date of dissolution for purposes of calculating the wife's share of the husband's military pension. In re Lockwood, 971 P.2d 264 (Colo. App. 1998).
Court's discretion in determining property valuation date. This section gives the trial court broad discretion in matters of property division, including determination of the property valuation date for division of marital property. Gaskie v. Hugins, 640 P.2d 248 (Colo. App. 1981).
Court's valuation was sufficiently supported by evidence of parties' agreement as to value of lot, wife's response to husband's request for admission of current market value of property, and verified financial statements and proposed final orders submitted by both parties. In re Price, 727 P.2d 1073 (Colo. 1986).
Valuation on the date of dissolution based on an earlier agreement does not abuse court's discretion, where trial court was fully appraised of its duty to value the disputed lot as of the date of dissolution. In re Price, 727 P.2d 1073 (Colo. 1986).
Subsequent testimony to the valuation as of the date of dissolution which concerned the value of the disputed lot was not sufficient as a matter of law to overcome documentary evidence to the contrary. In re Price, 727 P.2d 1073 (Colo. 1986).
Stipulated values not binding. Where the trial court has determined that fairness and equity require that the division be an equal one, the stipulated values set 10 years before are neither binding nor relevant. Gaskie v. Hugins, 640 P.2d 248 (Colo. App. 1981).
However, parties' agreement as to the value nine months before the date of dissolution was not outdated and irrelevant to court's determination of real estate's value. In re Price, 727 P.2d 1073 (Colo. 1986).
Trial court is not bound by partnership agreement in determining value of law practice. Where partnership agreement was designed to discourage partners from leaving firm and it appeared husband intended to stay with firm, court was free to use an alternate valuation method such as the excess earnings method. In re Huff, 834 P.2d 244 (Colo. 1992).
Excess earnings method is a generally accepted method for determining the present value of a person's interest in a business, representing both tangible assets and goodwill. In re Huff, 834 P.2d 244 (Colo. 1992).
Excess earnings method did not result in "double dipping" by wife awarded maintenance as well as a portion of present value of husband's interest in law practice. In re Huff, 834 P.2d 244 (Colo. 1992).
Weight to be accorded to the valuation techniques of an expert is for the trial court's determination, depending upon the court's assessment of the reliability of the data in a particular case. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993); In re Antuna, 8 P.3d 589 (Colo. App. 2000).
Decision as to which valuation method to rely on is a factual determination to be made by the trial court. In re Huff, 834 P.2d 244 (Colo. 1992).
Goodwill is a property or asset which supplements the earning capacity of another asset, business, or a profession, and, therefore, is not the earning capacity itself. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993).
The value of goodwill in an ongoing physical therapy practice is properly measured by arriving at a present value based upon past results and not by accounting for the postmarital efforts of the professional spouse. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993).
Identification, valuation, and division of husband's "good will" as a portion of his physical therapy practice did not divide husband's future income. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993).
Trial court erred in failing to credit wife with the value of her interest in a medical practice as a marital asset. In re Antuna, 8 P.3d 589 (Colo. App. 2000).
The conservation of the principal of an estate is, in itself, a valuable contribution which should be considered. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).
In disposing of a vested but unmatured pension plan, the principles of fairness and equity must attend the valuation process, and the contingencies underlying the particular pension plan must be taken into account. In re McGinnis, 778 P.2d 282 (Colo. App. 1989).
Valuation of undisclosed assets. Once property has been divided pursuant to this section, such property becomes akin to separate property, and any increase in the valve of ownership interest therein should be considered when determining valuation. The failure to do so constitutes a confiscatory taking. In re Hiner, 710 P.2d 488 (Colo. 1985).
Increase in value of separate property after dissolution of marriage is necessarily separate. In re Campbell, 43 Colo. App. 72, 599 P.2d 275 (1979).
The amount by which the present value of an asset of a spouse acquired before the marriage exceeds its value at the time of the marriage constitutes a marital asset. In re Burford, 950 P.2d 682 (Colo. App. 1997).
In carrying out the division of the marital estate, the dissolution court should first add to the marital estate the amount of increase during the course of the marriage, if any, in each asset that was owned by each party before marriage. If an asset suffered a decrease in value, it should be disregarded in calculating the overall value of a spouse's separate property. Then the court should consider whether the overall value of the spouse's entire separate property has increased or decreased for the purpose of dividing the marital estate. In re Burford, 950 P.2d 682 (Colo. App. 1997).
Although the assets paid off by husband may not have increased in fair market value, husband's use of marital funds to pay off his separate debts substantially increased his equity in his separate property and must be considered in the property division. It is not necessary that the spouse produce a marital "asset" capable of being divided when marital funds are used to pay off one spouse's premarital debts. It is sufficient that the spouse paying off or paying down the separate property received a benefit from the marital income such as increased equity in its own property. The court should consider the benefit as an economic circumstance. In re Burford, 26 P.3d 550 (Colo. App. 2001).
When debts have already been paid, they may be allocated in the property division through reimbursement. In re Burford, 26 P.3d 550 (Colo. App. 2001).
Debts incurred during the marriage but which are dissolution litigation costs should be allocated pursuant to § 14-10-119. In re Burford, 26 P.3d 550 (Colo. App. 2001).
In the case of a pension plan inaccessible prior to the employee's distant retirement and terminable upon the employee's death, the risk of forfeiture is an important factor for the trial court to consider. In such a case it would be inequitable to require an immediate, lump-sum payment unless the present value included the risk of forfeiture as a factor. In re McGinnis, 778 P.2d 281 (Colo. App. 1989).
Vested but unmatured pension benefits are marital property not subject to inflexible rules of property valuation. Combination of deferred distribution and reserve jurisdiction valuation based on earliest possible retirement date for husband with full benefits proper where husband was not currently entitled to retirement benefits. In re Kelm, 878 P.2d 34 (Colo. App. 1994), aff'd in part and rev' d in part on other grounds, 912 P.2d 545 (Colo. 1996).
Unvested, unmatured, noncontributory defined benefit pension plans are affected by different contingencies from those where plans are vested. In re Hunt, 909 P.2d 525 (Colo. 1995).
Three methods of distribution are at court's disposal in order to divide a pension plan upon dissolution: (1) Net present value; (2) deferred distribution; and (3) reserve jurisdiction. In re Hunt, 909 P.2d 525 (Colo. 1995).
"Time rule" formula, used to apportion pension benefits under the net present value and deferred distribution methods, described in In re Hunt, 909 P.2d 525 (Colo. 1995).
"Subtraction method" disapproved. Under the net present value method of distributing a pension plan, trial court's procedure of subtracting the present value of the husband's pension at the time of the marriage from the present value of the husband's pension at the time of the dissolution represented an abuse of discretion because, under the circumstances, this procedure grossly overstated the wife's share. In re James, 950 P.2d 624 (Colo. App. 1997).
Trial court is not preempted from using the net present value method to distribute an unmatured military pension. In re Riley-Cunningham, 7 P.3d 992 (Colo. App. 1998).
Trial court did not abuse its discretion in offsetting the net present values of the parties' military pensions and making a present distribution of the respective pensions, even though husband was retired from active duty while wife was not entitled to retire immediately and was still on active reserve. In re Riley-Cunningham, 7 P.3d 992 (Colo. App. 1998).
Post-divorce pension enhancements are not necessarily separate property. Although post-divorce earnings are undisputably separate property, pension enhancements are subject to application of the "time rule" formula and may be apportioned. In re Hunt, 909 P.2d 525 (Colo. 1995).
"Economic fault" concept rejected as a factor in distribution of post-divorce pension enhancements. In re Hunt, 909 P.2d 525 (Colo. 1995).
Court is not required to value or divide the parties' respective retirement plans by any set method so long as the division is equitable. No error in awarding wife the entire contribution she had made to a Public Employee Retirement Account where the benefits from such contribution were significantly less than husband's retirement benefits. In re Kelm, 878 P.2d 34 (Colo. App. 1994), aff'd in part and rev' d in part on other grounds, 912 P.2d 545 (Colo. 1996).
Court may retain jurisdiction over the distribution and valuation of stock options so that each party will "share in the risk of the fate of each of the options." In re Huston, 967 P.2d 181 (Colo. App. 1998).
Wife entitled to amount of husband's retirement funds, in the event of his death, only to extent of contributions made as of the date of dissolution. In re Kelm, 878 P.2d 34 (Colo. App. 1994), aff'd in part and rev' d in part on other grounds, 912 P.2d 545 (Colo. 1996).
"Seller's costs". The trial court did not err in not deducting normal seller's costs from the value of the home when it purported to split between the parties the remaining equity in the home because "seller's costs" were speculative at best. Rhoades v. Rhoades, 188 Colo. 423, 535 P.2d 1122 (1975).
Husband not entitled to share in the future appreciation of the home because property is valued at the dissolution hearing or property division hearing. In re Wornell, 697 P.2d 812 (Colo. App. 1985).
Loss apportioned. The trial court may apportion a loss in value of separate property between the parties. In re Talarico, 36 Colo. App. 389, 540 P.2d 1147 (1975).
Conclusion that parties did not contribute to enhancement of stock proper. Since investment patterns of persons in a situation similar to a particular married couple is not a matter of common knowledge, and therefore, comparisons of the investments in the wife's portfolio to those of some hypothetical average investor or a skilled investment counselor were merely speculation, it was proper for the trial court to conclude on the basis of such observations that neither party contributed to enhancement of the value of the stocks. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).
Valuation of intangible assets of husband's business. In determining the intangible value of husband's business, the important consideration is whether husband's business has a value to him above and beyond the tangible assets. In re Martin, 707 P.2d 1035 (Colo. App. 1985); In re Huff, 834 P.2d 244 (Colo. 1992).
Spouse was not entitled to any increase in value of assets awarded to her from the date of the decree to the date the permanent orders were entered where the decree was entered prior to the date of the hearing on disposition of property. In re Graff, 902 P.2d 402 (Colo. App. 1994).
Specific determination of the nature and elements of goodwill may be required when court orders one party to execute a covenant not to compete for protection of the goodwill of a business awarded to the other party. In re Fischer, 834 P.2d 270 (Colo. App. 1992).
Central to the valuation of property is the determination whether the property will actually be sold, thereby resulting in a net equity. The court should consider husband's intentions as to whether he will sell the property at issue, and if the property is to be sold, the finding of net equity must comport with the evidence. In re Finer, 920 P.2d 325 (Colo. App. 1996).
In case of dissipation of property, trial court's alternative ruling that stock shares could be valued at the time when they were sold, if that value was higher than the value on the date of the decree, was proper. In re Huston, 967 P.2d 181 (Colo. App. 1998).
Trial court did not err in valuing a leased automobile at $13,500, where husband had recently prepaid $13,500 on the lease of the leased vehicle. In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev' d in part on other grounds, 25 P.3d 28 (Colo. 2001).
Applied in In re Thompson, 706 P.2d 428 (Colo. App. 1985).
Scope of review. Division of property in dissolution of marriage proceedings may only be overturned upon a finding that the trial court abused its discretion. In re Talarico, 36 Colo. App. 389, 540 P.2d 1147 (1975); In re Sharp, 823 P.2d 1387 (Colo. App. 1991).
An appellate court will alter a division of property only if the trial court abuses its discretion. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977).
One who has accepted benefits of judgment may not seek reversal of that judgment on appeal. In re Jones, 627 P.2d 248 (Colo. 1981).
Acceptance of the benefits of a judgment constitutes a waiver of appeal rights only if such action is inconsistent with the basis for the appeal. It is when the appeal, if successful, will again put into issue the right of the party to receive the benefits already accepted that a waiver of the right to appeal has been found. In re Antuna, 8 P.3d 589 (Colo. App. 2000).
Husband is not barred from appealing portion of the property division where he had previously received his share of the retirement funds pursuant to the parties' agreement before the hearing on permanent orders. In re Antuna, 8 P.3d 589 (Colo. App. 2000).
A trial court having reached its conclusions and entered its order and judgment on documentary evidence alone, the supreme court was as well qualified to determine the equities involved in a divorce action concerning a division of the property of the parties as was the trial court, and under such circumstances, presumptions in favor of the correctness of the order and judgment were not conclusive. Stephenson v. Stephenson, 134 Colo. 96, 299 P.2d 1095 (1956).
In an action for divorce, where the questions presented to the appellate court for review concern only the property rights of the parties, matters relating to the divorce were not considered. Wigton v. Wigton, 73 Colo. 337, 216 P. 1055 (1923).
Where the reporter's transcript of the testimony taken at a hearing on division of property in a divorce action was not included in the record on error, the supreme court assumed that the trial court had before it the entire situation of the parties, that the evidence before the court fully supported the determination made, and that all conflicting claims of the parties were properly resolved. Gier v. Gier, 139 Colo. 289, 339 P.2d 677 (1959).
Where a decree ordering the title to property to remain in joint tenancy and granting the rights of possession and income in the property to the wife was not challenged, and had long since become final, the supreme court could not review it. McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690 (1962).
Under the law of the case doctrine, conclusions of an appellate court on issues presented to it, as well as rulings logically necessary to sustain such conclusions, become the law of the case and generally must be followed in subsequent proceedings in that case. However, application of the law of the case by a trial court to its property division rulings entered prior to an appeal is a discretionary rule of practice. The trial court's original permanent orders lose any binding effect or precedential value when they are reversed on appeal. In re Burford, 26 P.3d 550 (Colo. App. 2001).
Enforcement of property settlement. Ordering the payment of an amount due pursuant to the terms of the property settlement, together with interest, is an enforcement of the original decree and not a modification of the property settlement. In re Schutte, 721 P.2d 160 (Colo. App. 1986).
(1) Legislative declaration. The general assembly hereby finds that the economic lives of spouses are frequently closely intertwined in marriage and that it is often impossible to later segregate the respective decisions and contributions of the spouses. The general assembly further finds that when a dissolution of marriage or legal separation action has been filed and temporary orders are to be determined pursuant to section 14-10-108, it is generally appropriate to utilize the period of temporary orders as a period of adjustment during which the marital arrangements of the parties may be recognized through a temporary blending of the parties' incomes. Accordingly, the general assembly declares that for purposes of temporary orders, it is appropriate in most cases to apply a presumptive formula to the determination of temporary maintenance.
(2) (a) In every proceeding for dissolution of marriage or legal separation when temporary maintenance is requested by a party and when the combined annual gross income of the two parties is seventy-five thousand dollars or less, there shall be a rebuttable presumption in favor of a specific award of temporary maintenance from the higher income party to the lower income party based upon the formula set forth in paragraph (b) of this subsection (2). In those cases in which the combined annual gross income of the parties exceeds seventy-five thousand dollars, the court may award a monthly amount of temporary maintenance pursuant to the provisions of subsections (3) and (4) of this section.
(b) (I) (A) The monthly amount of temporary maintenance in cases in which the parties' combined annual gross income is seventy-five thousand dollars or less shall be equal to forty percent of the higher income party's monthly adjusted gross income less fifty percent of the lower income party's monthly adjusted gross income. If the remainder of such calculation is the number zero or a negative number, the presumption shall be that temporary maintenance shall not be awarded. If the remainder of such calculation is more than zero, that amount shall be the amount of the monthly temporary maintenance.
(B) In any action to establish or modify temporary maintenance pursuant to this subsection (2), the formula set forth in sub-subparagraph (A) of this subparagraph (I) shall be used as a rebuttable presumption for the establishment or modification of the amount of temporary maintenance. Courts shall deviate from the formula where its application would be inequitable or unjust. Any such deviation shall be accompanied by written or oral findings by the court specifying the reasons for the deviation and the presumed amount under the formula without deviation.
(C) The parties may agree in writing to waive temporary maintenance under this subsection (2) where one party is otherwise entitled to temporary maintenance under the formula or the parties may agree in writing to deviate from the presumptive amount of temporary maintenance. Any such agreement to waive temporary maintenance or to deviate from the presumptive amount shall include the reason or consideration for the waiver or deviation. The court shall have jurisdiction to review such agreement and to decline to approve such agreement if the court determines that the agreement is unconscionable.
(II) At the time of the initial establishment of temporary maintenance pursuant to this subsection (2), or in any proceeding to modify a temporary maintenance order pursuant to this subsection (2), if a party is under an obligation to pay maintenance or alimony pursuant to a prior valid court order, an adjustment shall be made revising such party's income by the amount of such maintenance or alimony actually paid prior to calculating the amount of temporary maintenance.
(III) At the time of the initial establishment of temporary maintenance pursuant to this subsection (2), or in any proceeding to modify a temporary maintenance order pursuant to this subsection (2), if a party is legally responsible for the support of other children who are not the children of the parties and for whom the parties do not share joint legal responsibility, an adjustment shall be made revising such party's income by the amount of such child support paid prior to calculating the amount of temporary maintenance.
(IV) (A) For purposes of this section, "income" shall have the same meaning as that term is described in section 14-10-115 (7).
(B) For purposes of calculating the formula set forth in this paragraph (b), "monthly adjusted gross income" means gross income less preexisting maintenance or alimony obligations actually paid by a party as described in subparagraph (II) of this paragraph (b) and less the amount of child support paid by a party, as described in subparagraph (III) of this paragraph (b).
(c) The period of time covered by any temporary maintenance ordered pursuant to this subsection (2), upon the request of a party, shall begin at the time of the parties' physical separation or filing of the petition or service upon the respondent, whichever occurs last, taking into consideration payments made by either party during such period.
(d) Because spousal maintenance awards entered at temporary orders pursuant to this subsection (2) are made under different standards and for different reasons than spousal maintenance awards entered at permanent orders, the temporary maintenance formula set forth in this subsection (2) shall not be used for the determination of spousal maintenance orders to be entered at permanent orders and any temporary maintenance order entered pursuant to this subsection (2) shall not prejudice the rights of either party at permanent orders.
(e) After determining the presumptive amount of temporary maintenance pursuant to this subsection (2) and the amount of temporary child support pursuant to section 14-10-115, the court shall consider the respective financial resources of each party and determine the temporary payment of marital debt and the temporary allocation of marital property.
(3) In a proceeding for dissolution of marriage or legal separation or a proceeding for maintenance following dissolution of marriage by a court, the court may grant a temporary maintenance order when the parties' combined annual gross income is more than seventy-five thousand dollars or a maintenance order at the time of permanent orders for either spouse only if it finds that the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs; and
(b) Is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
(4) A temporary maintenance order in those circumstances in which the parties' combined annual gross income is more than seventy-five thousand dollars or a maintenance order entered at the time of permanent orders shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant factors including:
(a) The financial resources of the party seeking maintenance, including marital property apportioned to such party, and the party's ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and that party's future earning capacity;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age and the physical and emotional condition of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance.
Source: L. 71: R&RE, p. 526, § 1. C.R.S. 1963: § 46-1-14. L. 79: (2)(b) amended, p. 644, § 1, effective July 1. L. 98: (2)(a) amended, p. 1397, § 41, effective February 1, 1999. L. 2001: Entire section amended, p. 481, § 1, effective July 1.
Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 607, 612-620, 750-752, 756-764, 786-791, 794, 795, 797- 803.
C.J.S. See 27B C.J.S., Divorce, § § 369-415.
Law reviews. For article, "Legislation Which Should Interest the Bar", see 20 Dicta 217 (1943). For article, "Forms Committee Presents Standard Pleading Samples to Be Used in Divorce Litigation", see 29 Dicta 94 (1952). For note, "The Effect of a Divorce Decree on a Subsequent Claim for Alimony", see 35 U. Colo. L. Rev. 402 (1963). For note on divorce, separation, and the federal income tax, see 39 U. Colo. L. Rev. 544 (1967). For note, "Legislation: Domestic Relations -- New Colorado Statutes Govern Procedure in Contested Child Custody Cases", see 40 U. Colo. L. Rev. 485 (1968). For article, "Due Process in Involuntary Civil Commitment and Incompetency Adjudication Proceedings: Where Does Colorado Stand?", see 46 Den. L.J. 516 (1969). For article, "Pre-Nuptial Agreements Revisited", see 11 Colo. Law. 1882 (1982). For article, "Automatic Escalation Clauses Relating to Maintenance and Child Support", see 12 Colo. Law. 1083 (1983). For article, "The Continued Jurisdiction of the Court to Modify Maintenance", see 13 Colo. Law. 62 (1984). For article, "Taxation", which discusses a recent Tenth Circuit decision dealing with periodic payments as alimony or property settlement, see 61 Den. L.J. 392 (1984). For article, "Domestic Case Update", see 14 Colo. Law. 209 (1985). For article, "Marital Agreements", see 18 Colo. Law. 31 (1989). For article, "The Case For Maintenance Reform", see 23 Colo. Law. 53 (1994). For article, "Voluntary Early Retirement as a Factor in Modifying Maintenance", see 25 Colo. Law. 43 (April 1996). For article, "Post-dissolution Maintenance Review in Trial Court Under CRS §§ 14-10-114 or -122", see 26 Colo. Law. 93 (July 1997). For article, "New Temporary Formulaic Spousal Maintenance in Colorado: An Overview", see 30 Colo. Law. 87 (August 2001).
Annotator's note. Since § 14-10-114 is similar to repealed § 46-1-5 (1)(d), C.R.S. 1963, § 46-1-5, CRS 53, CSA, C. 56, § 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Any award of maintenance to a spouse in Colorado is a personal statutory right and not a property right. In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).
The spirit of this section was comprehensive enough to cover a case where there might be some question as to whether a marriage was one de jure, provided there was a marriage de facto. Eickhoff v. Eickhoff, 29 Colo. 295, 68 P. 237 (1902).
Uniform Dissolution of Marriage Act provides separate sections that govern the different elements of a dissolution order, specifically property disposition, maintenance, child support, and attorney fees. The court is required to make separate orders regarding these elements based on separate considerations and may not commingle one element with another. In re Huff, 834 P.2d 244 (Colo. 1992).
There is a distinction between maintenance awards and property settlements. Property divisions are intended to accomplish a just apportionment of marital property over time, whereas maintenance is intended be a substitute for marital support that can be used, for example, to ease a spouse's transition into the work force and prevent the spouse from becoming dependent on public assistance. In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).
Division of property is mandatory under § 14-10-113, whereas an award of maintenance is discretionary under this section. In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).
Maintenance used to balance equities. A trial court may use an award of maintenance as a tool to balance equities and compensate a spouse whose work has enabled the other spouse to obtain an education; however, this tool is available for use only where the spouse seeking maintenance meets the statutory threshold requirements of need. In re McVey, 641 P.2d 300 (Colo. App. 1981).
Trial court did not abuse its discretion in determining that it would be equitable in view of the division of property for the income of husband and wife to be relatively equal. In re Martin, 707 P.2d 1035 (Colo. App. 1985).
The divorce decree was the principal thing and the judgment for alimony was incidental, and whether they were entered separately or together, they were treated as part of the same decree. Miller v. Miller, 129 Colo. 462, 271 P.2d 411 (1954).
Matters of maintenance and property division are inextricably interwoven. In re McVey, 641 P.2d 300 (Colo. App. 1981).
It was well-established in Colorado that the courts viewed the testimony in alimony and property settlement matters in the light most favorable to the prevailing party. Gleason v. Gleason, 162 Colo. 212, 425 P.2d 688 (1967).
Alimony was defined generally as payments necessary for food, clothing, habitation, and other necessities for the support of the wife. Magarrell v. Magarrell, 144 Colo. 228, 355 P.2d 946 (1960).
Insurance policies and the premiums necessary to maintain them in full force were not in any sense to provide for food, clothing, habitation, or other necessities for the support of the wife. Magarrell v. Magarrell, 144 Colo. 228, 355 P.2d 946 (1960).
An award to the wife of the use, possession, and income of the real estate did not constitute an award of alimony, because the right to use and possession and the income of real property were but incidents of the ownership of that property. McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690 (1962).
When parties availed themselves of the good offices of the court to fix the amounts of alimony to be paid from time to time and themselves changed the action from one for separate maintenance to one for divorce, it was assumed that they submitted themselves to the jurisdiction of the court for the entry of such orders as it deemed just and fair in accordance. Gavette v. Gavette, 104 Colo. 71, 88 P.2d 964 (1939).
Where the parties made a good faith although unsuccessful attempt at reconciliation and where the husband supported the family during this time, the support paid and contributed by the husband constituted payment of the maintenance installments accruing during the period they were living together. In re Peterson, 40 Colo. App. 115, 572 P.2d 849 (1977).
For the effect of an invalidity of marriage determination on maintenance payments which were terminated upon remarriage, see Torgan v. Torgan, 159 Colo. 93, 410 P.2d 167 (1966).
Applied in In re Thompson, 39 Colo. App. 400, 568 P.2d 98 (1977); In re Mitchell, 195 Colo. 399, 579 P.2d 613 (1978); In re Wagner, 44 Colo. App. 114, 612 P.2d 1147 (1980); In re Hartford, 44 Colo. App. 303, 612 P.2d 1163 (1980); In re Angerman, 44 Colo. App. 298, 612 P.2d 1166 (1980); In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980); In re Carney, 631 P.2d 1173 (Colo. 1981); Faris v. Rothenberg, 648 P.2d 1089 (Colo. 1982); In re Dickey, 658 P.2d 276 (Colo. App. 1982); In re Manzo, 659 P.2d 669 (Colo. 1983); In re Westlake, 674 P.2d 1386 (Colo. App. 1983); In re Dixon, 683 P.2d 803, (Colo. App. 1983); In re Wormell, 697 P.2d 812 (Colo. App. 1985); In re Thompson, 706 P.2d 428 (Colo. App. 1985); In re Martin, 707 P.2d 1035 (Colo. App. 1985); People in Interest of V.H., 749 P.2d 460 (Colo. App. 1987); In re Micaletti, 796 P.2d 54 (Colo. App. 1990); In re Sim, 939 P.2d 504 (Colo. App. 1997).
Maintenance must be requested in petition. Under the uniform act, maintenance must be requested in the petition for dissolution. In re Boyd, 643 P.2d 804 (Colo. App. 1982).
Property division must precede consideration of maintenance. In re Jones, 627 P.2d 248 (Colo. 1981). In re Huff, 834 P.2d 244 (Colo. 1992).
Application of subsection (1)(a) presupposes dividing marital property after setting apart separate property. The application of subsection (1)(a) of this section presupposes that the court has first set apart to each spouse his or her respective separate property and has divided the marital property. In re Jones, 627 P.2d 248 (Colo. 1981).
Alimony being consequent upon obtaining a divorce, there could be no judgment for alimony without a divorce decree, though they may have been and generally were entered together, the incident could not exist without the principal. Miller v. Miller, 129 Colo. 462, 271 P.2d 411 (1954).
Where no cause of action was stated in a complaint for divorce, no allowance of alimony or attorney fees could have been made. Oates v. Oates, 72 Colo. 195, 210 P. 325 (1922).
No personal judgment for alimony could be entered against the husband where service was by publication, but such alimony could be made a charge on land over which the court acquired jurisdiction by such service. Fowler v. Fowler, 74 Colo. 231, 220 P. 988 (1923).
Awards of maintenance are non-dischargeable in bankruptcy and the question of whether a domestic obligation is in the nature of maintenance must be determined based on federal bankruptcy standards, taking into account the substance of the obligation and the intent of the parties at the time of dissolution. In re Wilson, 888 P.2d 365 (Colo. App. 1994).
The parties' designation of a debt in the decree of dissolution as either a maintenance award that is non-dischargeable in bankruptcy or a property settlement that is dischargeable is not dispositive and in determining the intent of the parties and the substance of the obligation, the trial court must look beyond the language of the decree and may consider extrinsic evidence. In re Wilson, 888 P.2d 365 (Colo. App. 1994).
Trial court improperly found that husband's obligation to pay a street improvement debt was a nondischargeable lump sum maintenance obligation since, although an obligation to pay such a debt can be in the nature of maintenance, there was no evidence in the record that the parties intended that the obligation be in the nature of maintenance. In re Wilson, 888 P.2d 365 (Colo. App. 1994).
This section leaves to the trial court the determination under the particular facts of each case whether to award alimony . Reap v. Reap, 142 Colo. 354, 350 P.2d 1063 (1960).
This section does not compel a court to grant alimony in a divorce case; it is merely permissive. Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958); International Trust Co. v. Liebhardt, 111 Colo. 208, 139 P.2d 264 (1943).
Alimony could be waived, and the right to seek alimony could be surrendered for a valuable consideration. Newey v. Newey, 161 Colo. 395, 421 P.2d 464, 422 P.2d 641 (1966).
Court must make findings of fact which demonstrate the basis of its award of maintenance. In re Laychak, 704 P.2d 874 (Colo. App. 1985).
Evidence relevant to issue of "need". While evidence that husband allegedly inflicted the injuries which resulted in wife's medical expenses and decreased her earning capacity is irrelevant, evidence of wife's medical expenses and earning capacity are relevant to establishing statutory requirements of need and trial court's exclusion of such evidence adversely affected wife's rights regarding maintenance. In re Hulse, 727 P.2d 876 (Colo. App. 1986).
Determination of spouse's reasonable needs depends on the particular facts and circumstances of the parties' marriage, and court should consider the reasonable expectations of the parties in determining whether the a party should be granted maintenance. In re Marshall, 781 P.2d 177 (Colo. App. 1989), cert. denied, 794 P.2d 1011 (Colo. 1990).
The wife is not required to consume her portion of the marital property before being entitled to maintenance. In re Eller, 38 Colo. App. 74, 552 P.2d 30 (1976); In re Sewell, 817 P.2d 594 (Colo. App. 1991); In re Nordahl, 834 P.2d 838 (Colo. App. 1992); In re Bartolo, 971 P.2d 699 (Colo. App. 1998).
A court awarding maintenance need not make explicit findings that the wife has insufficient property to meet reasonable needs or is unable to support herself through appropriate employment. In re Lee, 781 P.2d 102 (Colo. App. 1989).
All that is required is that the court consider the wife's share of the marital property in arriving at its maintenance award. In re Eller, 38 Colo. App. 74, 552 P.2d 30 (1976).
In determining whether to award maintenance, the court must make a threshold determination that the spouse requesting it lacks sufficient property, including marital property, to provide for her reasonable needs and is unable to support herself through appropriate employment. In re Renier, 854 P.2d 1382 (Colo. App. 1993); In re Fisher, 931 P.2d 558 (Colo. App. 1996); In re Bartolo, 971 P.2d 699 (Colo. App. 1998).
The trial court properly determined questions of alimony and support basing its findings on the financial conditions, abilities, and needs of the parties as they appeared at the time of the hearing rather than on what those conditions might have been in the past or may be in the future. Watson v. Watson, 135 Colo. 296, 310 P.2d 554 (1957).
Because an award of permanent alimony must be based upon the circumstances existing at the time of the hearing thereon, including, but not limited to, the duration of the marriage, the financial condition of the parties, their needs and their abilities. Boyer v. Boyer, 148 Colo. 535, 366 P.2d 661 (1961).
Highly relevant factor to be considered by court in effecting just division of marital property is the extent to which the division will promote the objective of providing for each party's financial needs without maintenance. In re Jones, 627 P.2d 248 (Colo. 1981).
Fact that parties are in debt and having serious financial problems at time of dissolution does not preclude a nominal award of maintenance, if there is reason to believe that one party may rebound financially and may again be in the position to assist the other spouse in obtaining a standard of living nearer to that enjoyed during their marriage. In re Fernstrum, 820 P.2d 1149 (Colo. App. 1991).
Under subsection (1)(a) propriety of award of maintenance depends upon the inadequacy of the property and earning capacity possessed by the party seeking the award. In re Jones, 627 P.2d 248 (Colo. 1981); In re Olar, 747 P.2d 676 (Colo. 1987).
Husband's rights in discretionary trust are to be considered as "economic circumstance" of the husband in determining a just division of the marital property pursuant to § 14-10-113 (1)(c) and as a "relevant factor" in making an award of maintenance under subsection (2). In re Rosenblum, 43 Colo. App. 144, 602 P.2d 892 (1979).
Contribution to education of spouse. Among the relevant factors to be considered in a division of marital property is the contribution of the spouse seeking maintenance to the education of the other spouse from whom the maintenance is sought. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977); In re Olar, 747 P.2d 676 (Colo. 1987).
Voluntary financial contributions to wife by adult children, which are not based upon any legal obligation, are not appropriate factors for the trial court to consider in determining the amount of a maintenance award. In re Serdinsky, 740 P.2d 521 (Colo. 1987).
Limited consideration of a third party's resources, such as a current spouse's income, is not absolutely prohibited if the existence or use of such assets is directly relevant to an allegation by the payor spouse of a substantial and continuing change of circumstances. In re Bowles, 916 P.2d 615 (Colo. App. 1995).
The conduct of the party seeking alimony was formerly to be examined closely by the trial court, and evidence of moral delinquency or complete disregard of the marital vows and duties would be viewed as a bar to alimony. Reap v. Reap, 142 Colo. 354, 350 P.2d 1063 (1960).
In Colorado, fault was not the sole standard in determining whether alimony would be awarded. Reap v. Reap, 142 Colo. 354, 350 P.2d 1063 (1960).
Permanent alimony could be awarded the divorced wife although the decree may have been granted the husband for her fault. Bock v. Bock, 154 Colo. 408, 390 P.2d 956 (1964); Neander v. Neander, 35 Colo. 495, 84 P. 69 (1906); Vigil v. Vigil, 49 Colo. 156, 111 P. 833 (1910).
The fact that a person is without funds and without profitable employment has been held not to preclude the allowance of reasonable alimony and support where nothing but a disinclination to work, regardless of the motive therefor, interferes with his ability to earn a reasonable living. Rapson v. Rapson, 165 Colo. 188, 437 P.2d 780 (1968); Berge v. Berge, 33 Colo. App. 376, 522 P.2d 752 (1974), aff'd, 189 Colo. 103, 536 P.2d 1135 (1975).
The fact that defendant decided to quit his employment and return to college did not preclude the allowance of a reasonable support order based on his demonstrated earning capacity. Rapson v. Rapson, 165 Colo. 188, 437 P.2d 780 (1968).
Even though husband was out of work through no fault of his own and despite his good faith efforts to obtain work, award of monthly maintenance to wife was not an abuse of discretion because the husband retained a significant earning capacity. In re Gray, 813 P.2d 819 (Colo. App. 1991).
"Appropriate employment" means the employment is suited to the individual, including the individual's expectations and intentions as expressed during marriage. In re Olar, 747 P.2d 676 (Colo. 1987).
What constitutes "appropriate employment" requires consideration of the party's economic circumstances and reasonable expectations established during the marriage. The terms "reasonable needs" and "appropriate employment" should not be interpreted narrowly. Aldinger v. Aldinger, 813 P.2d 836 (Colo. App. 1991).
The determination of what constitutes "appropriate employment" and "reasonable needs" under subsection (1) is dependent upon the particular facts and circumstances of each case. In re Sewell, 817 P.2d 594 (Colo. App. 1991).
It is a defense to an action by a wife for alimony, support, maintenance, or separate maintenance that the husband already is making her a suitable and regular allowance, provided that allowance is a sufficient one. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).
A claim that a trial court failed to rule on the issue of granting or denying alimony in a divorce action was not supported by a record which showed an interlocutory decree providing for monthly support payments for a minor child until further order of the court, together with fees for defendant's counsel. Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958).
A spouse who accepts maintenance payments or an attorney fee award is not precluded from appealing such order. In re Lee, 781 P.2d 102 (Colo. App. 1989).
Court must reconsider the amount and duration of maintenance awarded upon correcting the property division. In re Antuna, 8 P.3d 589 (Colo. App. 2000).
There is no mathematical formula for establishing a just and equitable property settlement or alimony or support. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).
In the absence of special circumstances, an order for the support of a wife in a divorce case should be a reasonable sum, based on the necessities of the wife and the husband's ability to pay. Elmer v. Elmer, 132 Colo. 57, 285 P.2d 601 (1955); Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).
Alimony in gross will not normally be awarded unless special circumstances are present which support such award. Rayer v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973).
While the needs of a divorced wife remaining unmarried are not controlling on the amount of alimony to be awarded, they are deserving of careful consideration. Rodgers v. Rodgers, 102 Colo. 94, 76 P.2d 1104 (1938).
A personal judgment against a husband in a divorce action for alimony in a sum not justified by the record should not be entered simply on the ground of possible indefinite future increase in income, because if his financial situation improves so as to justify an increase in alimony, the power of the court to make additional appropriate orders may be invoked at the wife's pleasure. Gourley v. Gourley, 101 Colo. 430, 73 P.2d 1375 (1937).
In the absence of special circumstances which require or make a lump-sum award of alimony proper, or a compelling reason that necessitates the desirability for such an award, a lump-sum or gross award of alimony should not be made. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).
Absent extraordinary circumstances, court may not order one party to use property awarded in a dissolution proceeding to pay maintenance to the other party. In re Gray, 813 P.2d 819 (Colo. App. 1991).
Each case depends on own facts. As to the determination as to whether to make a lump-sum award of alimony, each case depends upon its own peculiar facts and circumstances. Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).
Alimony in gross is not unacceptable per se. Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).
While maintenance in gross is not favored, nevertheless, in a proper case in may be awarded. In re McVey, 641 P.2d 300 (Colo. App. 1981).
Since the granting of alimony in gross, or lump-sum alimony, as it is sometimes called, provides a definite and final judgment which the court cannot later modify, periodic payments are preferred, because such payments can be modified if a change in circumstances occurs. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).
Whether the court should award periodic alimony or alimony in gross is generally held to be a matter within the sound discretion of the court. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972); Rayer v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973); Moss v. Moss, 35 Colo. App. 53, 531 P.2d 635 (1974), aff'd, 190 Colo. 491, 549 P.2d 404 (1976); In re Icke, 35 Colo. App. 60, 530 P.2d 1001 (1974), aff'd, 189 Colo. 319, 540 P.2d 1076 (1975).
The trial court has broad discretion in determining the amount of alimony and the form of the award, i.e., periodic payments or alimony in gross. Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).
Although alimony could consist of periodic payments, indefinite in time and certain in amount, it was not necessarily true that all such payments in fixed amounts constituted alimony. Magarrell v. Magarrell, 144 Colo. 228, 355 P.2d 946 (1960).
Periodic alimony is generally favored because the court retains jurisdiction of the matter and may later modify the award. Rayer v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973).
Awards of periodic payments of alimony are preferred over awards of alimony in gross because an award of alimony in gross is a final judgment which is not modifiable at a later time while an award of periodic payments may be modified to adjust for changes in the circumstances of the parties. Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).
A decree giving land as alimony was not ipso facto erroneous, because entered after the interlocutory and before the final decree of divorce, there being a prayer for alimony. Fowler v. Fowler, 74 Colo. 231, 220 P. 988 (1923); Wigton v. Wigton, 73 Colo. 337, 216 P. 1055 (1923).
In awarding permanent alimony, care should be taken that it does not amount to an appropriation of the entire estate of the husband. Elmer v. Elmer, 132 Colo. 57, 285 P.2d 601 (1955).
An order for "permanent alimony" cannot amount to confiscation of the assets of the husband. Elmer v. Elmer. 132 Colo. 57, 285 P.2d 601 (1955).
Moreover, a court cannot make an award which will impoverish the husband. Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606 (1969).
In setting the amount of maintenance to be awarded, the court must consider all relevant factors including the ability of the spouse paying maintenance to meet his own needs and the needs of the spouse receiving maintenance. The court may also consider the future earning potential of the spouse. In re Gray, 813 P.2d 819 (Colo. App. 1991).
No income is imputed to the wife for choice of a retirement option that resulted in a smaller payment, for delaying payment in another plan, or for requesting that the court ignore the equity in her home. A decision that income should be imputed to the wife for not choosing differing retirement options or for not using equity in the house for living expenses would be tantamount to requiring her to exhaust her portion of the marital property before she is entitled to maintenance. In re Folwell, 910 P.2d 91 (Colo. App. 1995).
Court may not incorporate attorney fees into maintenance award. While award of attorney fees must be reviewed in light of parties' resources following property division and award of maintenance, standards for the different elements of the order are separate and distinct; tax consequences also may differ. In re Huff, 834 P.2d 244 (Colo. 1992).
Unliquidated workers' compensation award held to be different from pension. Whether award is marital property depends on extent to which award compensates for loss of earning capacity and medical expenses incurred during the marriage. If award compensates the spouse for post-dissolution loss of earning capacity, it is not marital property even if the compensable injury occurred during the marriage. If workers' compensation claim is pending on date of dissolution and will likely include indemnification for loss of marital earnings or medical expenses, trial court may reserve jurisdiction to apportion marital interest upon receipt of award. In re Smith, 817 P.2d 641 (Colo. App. 1991).
Where trial court's errors in making its property division with respect to stock options, interspousal gifts to wife, and wife's interest in the family trust impacted a substantial portion of the total marital assets, on remand the trial court should reconsider its maintenance award in light of its new property division and in light of the significant decrease in the value of one of the parties' investment accounts. In re Balanson, 25 P.3d 28 (Colo. 2001).
The awarding of alimony and fixing the amount thereof rested in the sound discretion of the trial court and unless an abuse of discretion was shown its judgment in such cases was not disturbed. Rodgers v. Rodgers, 102 Colo. 94, 76 P.2d 1104 (1938); Kleiger v. Kleiger, 127 Colo. 86, 254 P.2d 426 (1953); Bieler v. Bieler, 130 Colo. 17, 272 P.2d 636 (1954); Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662 (1955); Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958); Green v. Green, 139 Colo. 551, 342 P.2d 659 (1959); Brigham v. Brigham, 141 Colo. 41, 346 P.2d 302 (1959); Lanz v. Lanz, 143 Colo. 73, 351 P.2d 845 (1960); Brownfield v. Brownfield, 143 Colo. 262, 352 P.2d 674 (1960); Walden v. Walden, 147 Colo. 221, 363 P.2d 168 (1961); Flor v. Flor, 148 Colo. 514, 366 P.2d 664 (1961); McMichael v. McMichael, 152 Colo. 65, 380 P.2d 233 (1963); Hayutin v. Hayutin, 152 Colo. 261, 381 P.2d 272 (1963); Alden v. Alden, 155 Colo. 51, 393 P.2d 5 (1964); Kraus v. Kraus, 159 Colo. 331, 411 P.2d 240 (1966); MacReynolds v. MacReynolds, 29 Colo. App. 267, 482 P.2d 407 (1971); Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971); Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972); Jekot v. Jekot, 32 Colo. App. 118, 507 P.2d 473 (1973); In re Icke, 35 Colo. App. 60, 530 P.2d 1001 (1974), aff'd, 189 Colo. 319, 540 P.2d 1076 (1975); In re Martin, 707 P.2d 1035 (Colo. App. 1985); In re Gray, 813 P.2d 819 (Colo. App. 1991); In re Bartolo, 971 P.2d 699 (Colo. App. 1998); In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev' d in part on other grounds, 25 P.3d 28 (Colo. 2001).
Awards of child support and maintenance are matters generally within the sound discretion of the trial court and will not be set aside on appellate review in the absence of an abuse of discretion. In re Krise, 660 P.2d 920 (Colo. App. 1983).
Although a wife did not request alimony in her answer, once the trial court decided the issue of divorce, it was within its power under this section to determine whether the circumstances required additional orders for alimony and support. Reap v. Reap, 142 Colo. 354, 350 P.2d 1063 (1960).
A trial court certainly could, if so inclined, consider the effect of state and federal income taxes on its contemplated award. Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149 (1962).
The task of a trial court in a divorce action was to make a fair and equitable award of alimony and support, letting the taxes, and tax deductions, fall where they may. Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149 (1962).
The supreme court cannot say as matter of law that a trial court abuses its discretion in limiting the period of time during which alimony should be paid by the husband where the trial court awards alimony in a definite sum payable in monthly installments based on the finding that the award meets the reasonable needs of the wife in light of her present condition. Liggett v. Liggett, 152 Colo. 110, 380 P.2d 673 (1963).
Trial court erred in determining that it did not have discretion to determine the duration of maintenance and that it was therefore required to provide for maintenance for an unspecified period of time. In re Fisher, 931 P.2d 558 (Colo. App. 1996).
Alimony, support, and property settlement issues were formally considered together to determine whether the court had abused its discretion, and in making the determination, the court would consider a variety of factors, including whether the property was acquired before or after marriage, the efforts and attitudes of the parties toward its accumulation, the respective ages and earning abilities of the parties, the conduct of the parties during the marriage, the duration of the marriage, their stations in life, their health and physical condition, the necessities of the parties, their financial condition, and all other relevant circumstances. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).
In determining whether the trial court abused its discretion in awarding maintenance, the property and maintenance awards must be considered together. In re Huff, 834 P.2d 244 (Colo. 1992).
Where the maintenance award reflected a thorough consideration of the family's standard of living, the length of the marriage, the husband's ability to pay, the wife's age and earning capacity, and the wife's responsibilities as residential custodian of five children, the award was amply supported by the evidence and would not be overturned. In re Hunt, 868 P.2d 1140 (Colo. App. 1993).
The age of the parties, in conjunction with the relative earning potential each of the parties can reasonably anticipate, and also their relative wealth will be considered in determining whether the trial judge abused his discretion in the alimony award. Smith v. Smith, 172 Colo. 516, 474 P.2d 619 (1970).
Consideration of maintenance and attorney fees to determine whether court abused its discretion. In cases where an appeal has been taken from the property division, maintenance, and attorney fee provisions of a dissolution of marriage decree as a whole, they must be considered together to determine whether the trial court abused its discretion. In re Jones, 627 P.2d 248 (Colo. 1981); In re Seewald, 22 P.3d 580 (Colo. App. 2001).
Finding as to earning capacity not confiscatory. Where the evidence supported the court's finding that the husband was capable of earning sums greatly in excess of his present net salary, although it appeared that the court based its order on the present net income of the husband, the orders were not confiscatory. In re Anderson, 37 Colo. App. 55, 541 P.2d 1274 (1975).
Where the amount of property the trial court ordered the defendant to pay the plaintiff restored the plaintiff substantially to the same asset position she had occupied prior to the marriage, since the plaintiff's ability to support herself was substantially the same as it had been prior to the marriage, the trial court did not abuse its discretion. Cohan v. Cohan, 172 Colo. 563, 474 P.2d 792 (1970).
Where the husband's income was not stable but fluctuated from month to month, the trial court did not abuse its discretion in directing payments of support and alimony on a percentage of the husbands's income. Reap v. Reap, 142 Colo. 354, 350 P.2d 1063 (1960).
Where the wife had contributed her own funds to the purchase of the family home, and there was a comparatively small amount of property owned by the parties, and the wife was left without any right to receive alimony payments, the trial court did not abuse its discretion in awarding the jointly owned home to the wife in its order amended after the husband's death. Sarno v. Sarno, 28 Colo. App. 598, 478 P.2d 711 (1970).
Awarding maintenance to wife on decreasing schedule held abuse of discretion. In re Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975).
Trial court has discretion to award maintenance that decreases incrementally on a future date when wife's earning potential is expected to increase and again on a future date when wife is expected to begin receiving pension benefits. In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev' d in part on other grounds, 25 P.3d 28 (Colo. 2001).
That the court has continuing jurisdiction over the payment of alimony may be assumed as the settled law of this state. Zlaten v. Zlaten, 117 Colo. 296, 186 P.2d 583 (1947).
A trial court may expressly reserve jurisdiction to review, adjust, or extend a maintenance award if: (1) an important contingency exists, the outcome of which may significantly affect the amount or duration of the maintenance award; (2) the contingency is based upon an ascertainable, future event or events; (3) the contingency can be resolved within a reasonable and specific period of time. In re Caufman, 829 P.2d 501 (Colo. App. 1992).
If a trial court intends to reserve jurisdiction over maintenance pursuant to this section it should: (1) state its intent to do so on the record; (2) briefly outline its reasons for doing so, stating what the ascertainable future event upon which the reservation of maintenance jurisdiction is based; and (3) set forth a reasonably specific future time within which maintenance may be reconsidered under this section. In re Caufman, 829 P.2d 501 (Colo. App. 1992).
A trial court may retain jurisdiction over maintenance if, at the time of permanent orders, an important future contingency exists that can be resolved in a reasonable and specific period of time, and if the court explicitly states its intent to reserve jurisdiction, describes the future event, and sets forth a reasonably specific future time within which maintenance may be considered. In re Folwell, 910 P.2d 91 (Colo. App. 1995).
The trial court erred in providing for future adjustments to maintenance. The assumptions made constitute improper speculation upon which to base future changes in maintenance. In re Folwell, 910 P.2d 91 (Colo. App. 1995).
In modifying provision for maintenance, burden is on party seeking modification to prove a substantial and continuing change of circumstances. Malmgren v. Malmgren, 628 P.2d 164 (Colo. App. 1981); In re DaFoe, 677 P.2d 426 (Colo. App. 1983).
Reconsideration of maintenance and attorney fees unnecessary absent contest. When neither party contests a trial court's division of property it is not necessary that the court be able to reconsider the property division in order to correct error in the provisions for maintenance and attorney's fees. In re Jones, 627 P.2d 248 (Colo. 1981).
Award of further maintenance upheld. The trial court neither abused its discretion nor exceeded its jurisdiction in awarding further maintenance to the wife where a separation agreement, having been incorporated into the divorce decree, became part of the final order when the decree was entered, and allowed a court to "review the issue" of spousal maintenance at end of six months. In re Sinn, 674 P.2d 988 (Colo. App. 1983); In re Woodman, 676 P.2d 1232 (Colo. App. 1983).
A provision of divorce decree retaining jurisdiction to award such alimony as may be just, did not alter the finality of that portion of the decree determining the rights and interests of the parties in real estate involved. McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690 (1962).
Where it appeared from the record in a divorce case that both parties intended that a court retain jurisdiction of a question of permanent alimony and related matters after the entry of a final decree of divorce, orders entered determining such matters after entry of the decree were not void for want of jurisdiction. Rodgers v. Rodgers, 137 Colo. 74, 323 P.2d 892 (1958).
To correct an order for support directing payments in excess of defendant's ability to pay, required formal action by the one thus burdened, since to reduce support payments required by an order of the trial court necessitated a motion by him who sought relief. Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373 (1961).
One who has accepted benefits of judgment may not seek reversal of that judgment on appeal. In re Jones, 627 P.2d 248 (Colo. 1981).
Awarding of attorney fees is discretionary with trial court and will not be disturbed on review if supported by the evidence. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part, rev' d on other grounds, 653 P.2d 728 (Colo. 1982); In re DaFoe, 677 P.2d 426 (Colo. App. 1983).
Fixing permanent alimony, and readjusting a property settlement was a function of the trial court and could not be assumed by the supreme court. Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662 (1955); Brigham v. Brigham, 141 Colo. 41, 346 P.2d 302 (1959).
A trial court award to a plaintiff of permanent alimony was subject to review by a trial court in the event a changed condition arises. Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662 (1955).
Limited consideration of a third party's resources, such as a current spouse's income, is not absolutely prohibited if the existence or use of such assets is directly relevant to an allegation by the payor spouse of a substantial and continuing change of circumstances. In re Bowles, 916 P.2d 615 (Colo. App. 1995).
An allowance for separate maintenance was not alimony within the strict definition of that term. Weston v. Weston, 79 Colo. 478, 246 P. 790 (1926).
When an original divorce action was dismissed, the parties were still husband and wife, and the wife was at liberty to institute a separate maintenance action against the husband, just as though there had been no former litigation between the parties. Morgan v. Morgan, 139 Colo. 545, 340 P.2d 1060 (1959).
In determining the amount of support to be awarded in a separate maintenance action, the trial court could have considered the ability of the husband, the value of his estate; and his earning capacity, and adjudication could not result in appropriation of his entire estate or impoverishment to the extent of rendering him unable to maintain himself. Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373 (1961); Fahey v. Fahey, 43 Colo. 354, 96 P. 251 (1908).
In a separate maintenance action only such alimony and support could be awarded as was necessary to adequately maintain a family in the manner to which it was accustomed and suitable to their station, and a husband could be divested of a reasonable proportion of his earnings and, if need be, of his property, that his wife and children could have reasonable support. Morgan v. Morgan, 139 Colo. 545, 340 P.2d 1060 (1959).
In all cases there was a factor to consider, and that was the ability of a husband and father to meet the reasonable needs of his wife and children. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).
The purpose was not to enrich the wife, but to provide suitable support and maintenance for her, taking into consideration the manner in which she is accustomed to living with him, and his ability to provide support. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).
A reasonable amount for her maintenance during coverture, or until reconciliation, estimated with reference to the means of her husband, and payable out of his estate, was the relief to which a wife was entitled, if the case made by her complaint should be established. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).
In the absence of very special circumstances a lump-sum award could not be made in a separate maintenance suit, and the considerations which supported a lump-sum award or division of property in a divorce action that terminate property rights, were not present in separate maintenance suits where property rights were retained. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).
It was an abuse of discretion, to award a wife the equivalent of one-third of the husband's estate, instead of a periodical payment for her support. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).
Where trial court's errors in making its property division with respect to stock options, interspousal gifts to wife, and wife's interest in the family trust impacted a substantial portion of the total marital assets, on remand the trial court should reconsider its maintenance award in light of its new property division and in light of the significant decrease in the value of one of the parties' investment accounts. In re Balanson, 25 P.3d 28 (Colo. 2001).
There is no statutory proscription against contracting for maintenance in an antenuptial agreement. In re Newman v. Newman, 653 P.2d 728 (Colo. 1982).
Separation agreements and antenuptial agreements are separate and distinct legal documents. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part, rev' d on other grounds, 653 P.2d 728 (Colo. 1982).
Spouses-to-be have right to enter into antenuptial agreements which contemplate the possibility of dissolution. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part, rev' d on other grounds, 653 P.2d 728 (Colo. 1982).
Antenuptial agreement no bar to maintenance unless specifically stated. In the absence of any reference in an antenuptial agreement to a relinquishment of the right to maintenance, the agreement does not bar the wife's claim for maintenance. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).
Antenuptial agreement did not preclude an award of maintenance or reflect any waiver of maintenance by wife. In re Meisner, 715 P.2d 1273 (Colo. App. 1985).
Antenuptial maintenance agreement is subject to judicial scrutiny for conscionability. In re Newman v. Newman, 653 P.2d 728 (Colo. 1982); In re Meisner, 715 P.2d 1273 (Colo. App. 1985).
"Unconscionability", as applied to a maintenance agreement, exists when enforcement of the terms of the agreement results in a spouse having insufficient property to provide for his reasonable needs and who is otherwise unable to support himself through appropriate employment. In re Newman v. Newman, 653 P.2d 728 (Colo. 1982); In re Meisner, 715 P.2d 1273 (Colo. App. 1985).
Maintenance agreement may become unconscionable because of circumstances at time of dissolution. Even though an antenuptial agreement is entered into in good faith, with full disclosure and without any element of fraud or overreaching, the maintenance provisions thereof may become voidable for unconscionability occasioned by circumstances existing at the time of the marriage dissolution. In re Newman v. Newman, 653 P.2d 728 (Colo. 1982); In re Meisner, 715 P.2d 1273 (Colo. App. 1985).
Burden of proof of unconscionability. One who claims that an antenuptial maintenance agreement is unconscionable must prove that at the time of the marriage dissolution the maintenance agreement rendered the spouse without a means of reasonable support, either because of a lack of property resources or a condition of unemployability. In re Newman v. Newman, 653 P.2d 728 (Colo. 1982).
Where antenuptial agreement was silent on matter of attorney fees, the awarding of such fees was controlled by § 14-10-119. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part, rev' d on other grounds, 653 P.2d 728 (Colo. 1982).
(1) In a proceeding for dissolution of marriage, legal separation, maintenance, or child support, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for the child's support and may order an amount determined to be reasonable under the circumstances for a time period that occurred after the date of the parties' physical separation or the filing of the petition or service upon the respondent, whichever date is latest, and prior to the entry of the support order, without regard to marital misconduct, after considering all relevant factors including:
(a) The financial resources of the child;
(b) The financial resources of the custodial parent;
(c) The standard of living the child would have enjoyed had the marriage not been dissolved;
(d) The physical and emotional condition of the child and his educational needs; and
(e) The financial resources and needs of the noncustodial parent.
(1.5) (a) For child support orders entered prior to July 1, 1997, unless a court finds that a child is otherwise emancipated, emancipation occurs and child support terminates when the child attains nineteen years of age unless one or more of the following conditions exist:
(I) The parties agree otherwise in a written stipulation after July 1, 1991.
(II) If the child is mentally or physically disabled, the court or the delegate child support enforcement unit may order child support, including payments for medical expenses or insurance or both, to continue beyond the age of nineteen.
(III) If the child is still in high school or an equivalent program, support continues until the end of the month following graduation, unless there is an order for postsecondary education, in which case support continues through postsecondary education as provided in subparagraph (I) of paragraph (b) of this subsection (1.5). A child who ceases to attend high school prior to graduation and later reenrolls is entitled to support upon reenrollment and until the end of the month following graduation, but not beyond age twenty-one.
(I) If the court finds that it is appropriate for the parents to contribute to the costs of a program of postsecondary education, then the court shall terminate child support and enter an order requiring both parents to contribute a sum determined to be reasonable for the education expenses of the child, taking into account the resources of each parent and the child. In determining the amount of each parent's contribution to the costs of a program of postsecondary education for a child, the court shall be limited to an amount not to exceed the amount listed under the schedule of basic child support obligations in paragraph (b) of subsection (10) of this section for the number of children receiving postsecondary education. The amount of contribution which each parent is ordered to pay pursuant to this paragraph (b) shall be subtracted from the amount of each parent's gross income, respectively, prior to calculating the basic child support obligation for any remaining children pursuant to subsection (10) of this section. In no case shall the court issue orders providing for both child support and postsecondary education to be paid for the same time period for the same child regardless of the age of the child. Either parent or the child may move for such an order at any time before the child attains the age of twenty-one years. Either a child seeking an order for postsecondary education expenses or on whose behalf postsecondary education expenses are sought, or the parent from whom the payment of postsecondary education expenses are sought, may request that the court order the child and such parent to seek mediation prior to a hearing on the issue of postsecondary education expenses. Mediation services shall be provided in accordance with section 13-22-305, C.R.S. The court may order the parties to seek mediation if the court finds that mediation is appropriate. Postsecondary education includes college and vocational education programs. If such an order is entered, the parents shall contribute to the total sum determined by the court in proportion to their adjusted gross incomes as defined in subparagraph (II) of paragraph (a) of subsection (10) of this section. The order for postsecondary education support may not extend beyond the earlier of the child's twenty-first birthday or the completion of an undergraduate degree. The court may order the support paid directly to the educational institution, to the child, or in such other fashion as is appropriate to support the education of the child. If the child resides in the home of one parent while attending school or during periods of time in excess of thirty days when school is not in session, the court may order payments from one parent to the other for room and board until the child attains the age of nineteen. A child shall not be considered emancipated solely by reason of living away from home while in postsecondary education.
(II) If the court orders support pursuant to subparagraph (I) of this paragraph (b), the court or delegate child support enforcement unit may also order that the parents provide health insurance for the child or pay medical expenses of the child or both for the duration of such order. Such order shall provide that these expenses be paid in proportion to their adjusted gross incomes as defined in subparagraph (II) of paragraph (a) of subsection (10) of this section. The court or delegate child support enforcement unit shall order a parent to provide health insurance if the child is eligible for coverage as a dependent on that parent's insurance policy or if health insurance coverage for the child is available at reasonable cost.
(c) This subsection (1.5) shall apply to all child support obligations established or modified as a part of any proceeding, including but not limited to articles 5, 6, and 10 of this title and articles 4 and 6 of title 19, C.R.S., prior to July 1, 1997. This subsection (1.5) shall not apply to child support orders established on or after July 1, 1997, which shall be governed by subsection (1.6) of this section.
(c.5) An order for postsecondary education expenses entered between July 1, 1991, and July 1, 1997, may be modified pursuant to this subsection (1.5) to provide for postsecondary education expenses subject to the statutory provisions for determining the amount of a parent's contribution to the costs of postsecondary education, the limitations on the amount of a parent's contribution, and the changes to the definition of postsecondary education consistent with this section as it existed on July 1, 1994. An order for child support entered prior to July 1, 1997, that does not provide for postsecondary education expenses shall not be modified pursuant to this subsection (1.5).
(d) Postsecondary education support may be established or modified in the same manner as child support under this article.
(e) For the purposes of this section, "postsecondary education support" means support for the following expenses associated with attending a college, university, or vocational education program: Tuition, books, and fees.
(1.6) For child support orders entered on or after July 1, 1997, unless a court finds that a child is otherwise emancipated, emancipation occurs and child support terminates when the child attains nineteen years of age unless one or more of the following conditions exist:
(a) The parties agree otherwise in a written stipulation after July 1, 1997.
(b) If the child is mentally or physically disabled, the court or the delegate child support enforcement unit may order child support, including payments for medical expenses or insurance or both, to continue beyond the age of nineteen.
(c) If the child is still in high school or an equivalent program, support continues until the end of the month following graduation. A child who ceases to attend high school prior to graduation and later reenrolls is entitled to support upon reenrollment and until the end of the month following graduation, but not beyond age twenty-one.
(1.7) Nothing in subsection (1.5) or (1.6) of this section shall preclude the parties from agreeing in a written stipulation or agreement on or after July 1, 1997, to continue child support beyond the age of nineteen or to provide for postsecondary education expenses for a child and to set forth the details of the payment of such expenses. If such stipulation or agreement is approved by the court and made part of a decree of dissolution of marriage or legal separation, the terms of such agreement shall be enforced as provided in section 14-10-112.
(2) (Deleted by amendment, L. 96 , p. 594, § 7, effective July 1, 1996.)
(3) (a) In any action to establish or modify child support, whether temporary or permanent, the child support guideline as set forth in this section shall be used as a rebuttable presumption for the establishment or modification of the amount of child support. Courts may deviate from the guideline where its application would be inequitable, unjust, or inappropriate. Any such deviation shall be accompanied by written or oral findings by the court specifying the reasons for the deviation and the presumed amount under the guidelines without a deviation. These reasons may include, but are not limited to, the extraordinary medical expenses incurred for treatment of either parent or a current spouse, extraordinary costs associated with parenting time, the gross disparity in income between the parents, the ownership by a parent of a substantial nonincome producing asset, consistent overtime not considered in gross income under sub-subparagraph (C) of subparagraph (I) of paragraph (a) of subsection (7) of this section, or income from employment that is in addition to a full-time job or that results in the employment of the obligor more than forty hours per week or more than what would otherwise be considered to be full-time employment. The existence of a factor enumerated in this section does not require the court to deviate from the guidelines, but is a factor to be considered in the decision to deviate. The court may deviate from the guidelines even if no factor enumerated in this section exists.
(b) (I) Stipulations presented to the court shall be reviewed by the court for approval. No hearing shall be required; however, the court shall use the guideline to review the adequacy of child support orders negotiated by the parties as well as the financial affidavit which fully discloses the financial status of the parties as required for use of the guideline.
(II) When a child support order is entered or modified, the parties may agree or the court may require the parties to exchange financial information, including verification of insurance and its costs, pursuant to paragraph (c) of subsection (7) of this section and other appropriate information once a year or less often, by regular mail, for the purpose of updating and modifying the order without a court hearing. The parties shall use the approved standardized child support guideline forms in exchanging such financial information. Such forms shall be included with any agreed modification or an agreement that a modification is not appropriate at the time. If the agreed amount departs from the guidelines, the parties shall furnish statements of explanation, which shall be included with the forms and shall be filed with the court. The court shall review the agreement pursuant to this subparagraph (II) and inform the parties by regular mail whether or not additional or corrected information is needed, or that the modification is granted, or that the modification is denied. If the parties cannot agree, no modification pursuant to this subparagraph (II) shall be entered; however, either party may move for or the court may schedule, upon its own motion, a modification hearing.
(III) Upon request of the noncustodial parent, the court may order the custodial parent to submit an annual update of financial information using the approved standardized child support guideline forms, including information on the actual expenses relating to the children of the marriage for whom support has been ordered. The court shall not order the custodial parent to update such financial information pursuant to this subparagraph (III) in circumstances where the noncustodial parent has failed to exercise parenting time rights or when child support payments are in arrears or where there is documented evidence of domestic violence, child abuse, or a violation of a restraining order on the part of the noncustodial parent. The court may order the noncustodial parent to pay the costs involved in preparing an update to the financial information. If the noncustodial parent claims, based upon the information in the updated form, that the custodial parent is not spending the child support for the benefit of the children, the court may refer the parties to a mediator to resolve the differences. If there are costs for such mediation, the court shall order that the party requesting the mediation pay such costs.
(c) The child support guideline has the following purposes:
(I) To establish as state policy an adequate standard of support for children, subject to the ability of parents to pay;
(II) To make awards more equitable by ensuring more consistent treatment of persons in similar circumstances; and
(III) To improve the efficiency of the court process by promoting settlements and giving courts and the parties guidance in establishing levels of awards.
(3.5) All child support orders entered pursuant to this article shall provide the social security numbers and dates of birth of the parties and of the children who are the subject of the order and the parties' residential and mailing addresses.
(4) The child support guideline does the following:
(a) Calculates child support based upon the parents' combined adjusted gross income estimated to have been allocated to the child if the parents and children were living in an intact household;
(b) Adjusts the child support based upon the needs of the children for extraordinary medical expenses and work-related child care costs;
(c) Allocates the amount of child support to be paid by each parent based upon physical care arrangements.
(5) The child support guideline shall be used with standardized child support guideline forms to be issued by the supreme court, which forms shall be periodically updated when necessary.
(6) The child support guideline may be used by the parties as the basis for periodic updates of child support obligations.
(a) For the purposes of the guideline specified in subsections (3) to (14) of this section, "income" means actual gross income of a parent, if employed to full capacity, or potential income, if unemployed or underemployed. Gross income of each parent shall be determined according to the following guidelines:
(I) (A) "Gross income" includes income from any source and includes, but is not limited to, income from salaries; wages, including tips declared by the individual for purposes of reporting to the federal internal revenue service or tips imputed to bring the employee's gross earnings to the minimum wage for the number of hours worked, whichever is greater; commissions; payments received as an independent contractor for labor or services; bonuses; dividends; severance pay; pensions and retirement benefits, including but not limited to those paid pursuant to article 64 of title 22, C.R.S., articles 51, 54, 54.5, 54.6, and 54.7 of title 24, C.R.S., and article 30 of title 31, C.R.S.; royalties; rents; interest; trust income; annuities; capital gains; any moneys drawn by a self-employed individual for personal use; social security benefits, including social security benefits actually received by a parent as a result of the disability of that parent or as the result of the death of the minor child's stepparent, but not including social security benefits received by a minor child or on behalf of a minor child as a result of the death or disability of a stepparent of the child; workers' compensation benefits; unemployment insurance benefits; disability insurance benefits; funds held in or payable from any health, accident, disability, or casualty insurance to the extent that such insurance replaces wages or provides income in lieu of wages; monetary gifts; monetary prizes, excluding lottery winnings not required by the rules of the Colorado lottery commission to be paid only at the lottery office; taxable distributions from general partnerships, limited partnerships, closely held corporations, or limited liability companies; and alimony or maintenance received. "Gross income" does not include child support payments received.
(B) "Gross income" does not include benefits received from means-tested public assistance programs, including but not limited to assistance provided under the Colorado works program, as described in part 7 of article 2 of title 26, C.R.S., supplemental security income, food stamps, and general assistance.
(C) "Gross income" includes overtime pay only if the overtime is required by the employer as a condition of employment. "Gross income" does not include income from additional jobs that result in the employment of the obligor more than forty hours per week or more than what would otherwise be considered to be full-time employment.
(II) (A) For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, "gross income" means gross receipts minus ordinary and necessary expenses required to produce such income.
(B) "Ordinary and necessary expenses" does not include amounts allowable by the internal revenue service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.
(III) Expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business shall be counted as income if they are significant and reduce personal living expenses.
(b) (I) If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income; except that a determination of potential income shall not be made for a parent who is physically or mentally incapacitated or is caring for a child under the age of thirty months for whom the parents owe a joint legal responsibility.
(I.5) If a noncustodial parent who owes past-due child support is unemployed and not incapacitated and has an obligation of support to a child receiving assistance pursuant to part 7 of article 2 of title 26, C.R.S., the court or delegate child support enforcement unit may order such parent to pay such support in accordance with a plan approved by the court or to participate in work activities. Work activities may include one or more of the following:
(A) Private or public sector employment;
(E) Any other employment-related activities available to that particular individual.
(III) For the purposes of this section, a parent shall not be deemed "underemployed" if:
(A) The employment is temporary and is reasonably intended to result in higher income within the foreseeable future; or
(B) The employment is a good faith career choice which is not intended to deprive a child of support and does not unreasonably reduce the support available to a child; or
(C) The parent is enrolled in an educational program which is reasonably intended to result in a degree or certification within a reasonable period of time and which will result in a higher income, so long as the educational program is a good faith career choice which is not intended to deprive the child of support and which does not unreasonably reduce the support available to a child.
(c) Income statements of the parents shall be verified with documentation of both current and past earnings. Suitable documentation of current earnings includes pay stubs, employer statements, or receipts and expenses if self-employed. Documentation of current earnings shall be supplemented with copies of the most recent tax return to provide verification of earnings over a longer period. A copy of wage statements or other wage information obtained from the computer data base maintained by the department of labor and employment shall be admissible into evidence for purposes of determining income under this subsection (7).
(d) The amount of child support actually paid by a parent with an order for support of other children shall be deducted from that parent's gross income. For the purposes of this section, "other children" means children who are not the subject of this particular child support determination.
(d.5) (I) At the time of the initial establishment of a child support order, or in any proceeding to modify a support order, if a parent is also legally responsible for the support of other children born prior to the children who are the subject of the child support order and for whom the parents do not share joint legal responsibility, an adjustment shall be made revising such parent's income prior to calculating the basic child support obligation for the children who are the subject of the support order if the children are living in the home of the parent seeking the adjustment or if the children are living out of the home, and the parent seeking the adjustment provides documented proof of money payments of support of those children. The amount shall not exceed the guidelines listed in this section. An amount equal to the amount listed under the schedule of basic child support obligations in paragraph (b) of subsection (10) of this section which would represent a support obligation based only upon the responsible parent's gross income, without any other adjustments, for the number of such other children for whom such parent is also responsible shall be subtracted from the amount of such parent's gross income prior to calculating the basic child support obligation based on both parents' gross income as provided in subsection (10) of this section.
(II) The adjustment pursuant to this paragraph (d.5), based on the responsibility to support other children, shall not be made to the extent that the adjustment contributes to the calculation of a support order lower than a previously existing support order for the children who are the subject of the modification hearing at which an adjustment is sought.
(e) Repealed and deleted by amendment, L. 92, pp. 198, 166, § § 3, 1, effective August 1, 1992.
(8) Shared physical care. For the purposes of this section, "shared physical care" means that each parent keeps the children overnight for more than ninety-two overnights each year and that both parents contribute to the expenses of the children in addition to the payment of child support.
(9) Split physical care. For the purposes of this section, "split physical care" means that each parent has physical care of at least one of the children by means of that child or children residing with that parent the majority of the time.
(10) Basic child support obligations.
(a) (I) The basic child support obligation shall be determined using the schedule of basic child support obligations contained in paragraph (b) of this subsection (10). The basic child support obligation shall be divided between the parents in proportion to their adjusted gross incomes.
(II) (A) The category entitled "combined gross income" in the schedule means the combined monthly adjusted gross incomes of both parents. For the purposes of subsections (3) to (14) of this section, "adjusted gross income" means gross income less preexisting child support obligations and less alimony or maintenance actually paid by a parent. For combined gross income amounts falling between amounts shown in the schedule, basic child support amounts shall be extrapolated. The category entitled "number of children due support" in the schedule means children for whom the parents share joint legal responsibility and for whom support is being sought.
(B) Except as otherwise provided in sub-subparagraph (D) of this subparagraph (II), in circumstances in which the parents' combined monthly adjusted gross income is eight hundred fifty dollars or less, a child support payment of fifty dollars per month shall be required.
(C) Except as otherwise provided in sub-subparagraph (D) of this subparagraph (II), in circumstances in which the parents' combined monthly adjusted gross income is more than eight hundred fifty dollars, but in which the parent with the least number of overnights per year with the child has a monthly adjusted gross income of less than one thousand eight hundred fifty dollars, the court or delegate child support enforcement unit, pursuant to section 26-13.5-105 (4), C.R.S., shall perform a low-income adjustment calculation of child support as follows: The court or delegate child support enforcement unit shall determine each parent's monthly adjusted gross income, as that term is defined in sub-subparagraph (A) of this subparagraph (II). Based upon the parents' combined monthly adjusted gross incomes, the court or delegate child support enforcement unit shall determine the monthly basic child support obligation, using the schedule of basic child support obligations set forth in paragraph (b) of this subsection (10) and shall determine each parent's presumptive proportionate share of said obligation. The court or delegate child support enforcement unit shall then adjust the income of the parent with the fewest number of overnights per year with the child by subtracting nine hundred dollars from that parent's monthly adjusted gross income. The court shall multiply the resulting amount by a factor of forty percent. The product of the multiplication shall be added to the following basic minimum child support amount as additional minimum support, unless the product of the multiplication amount is zero or a negative figure, in which case the court shall add zero to the following basic minimum child support amount: Seventy-five dollars for one child; one hundred fifty dollars for two children; two hundred twenty-five dollars for three children; two hundred seventy-five dollars for four children; three hundred twenty-five dollars for five children; and three hundred fifty dollars for six or more children. The court or delegate child support enforcement unit shall compare the product of this addition to the parent's presumptive proportionate share of the monthly basic support obligation determined previously from the schedule of basic child support obligations. The lesser of the two amounts shall be the basic monthly support obligation to be paid by the low-income parent, as adjusted by the low-income parent's proportionate share of the work-related and education-related child care costs, health insurance, extraordinary medical expenses, and other extraordinary adjustments as described in subsections (11) to (13.5) of this section.
(D) In any circumstance in which the obligor's monthly adjusted gross income is less than eight hundred fifty dollars, regardless of the monthly adjusted gross income of the obligee, the obligor shall be ordered to pay fifty dollars per month in child support.
(E) The judge may use discretion to determine child support in circumstances where combined adjusted gross income exceeds the uppermost levels of the guideline; except that the presumptive basic child support obligation shall not be less than it would be based on the highest level of adjusted gross income set forth in the guideline.
(b) Schedule of basic child support obligations: