Most litigants are seeking compensation for injury; to right a wrong; and/or to expose the truth. Parties to a divorce with this mindset are quickly disappointed. Colorado is a “no-fault” divorce state, meaning a divorce proceeding will not vindicate, declare punishment or condemn a spouse for martial wrongdoing. If a spouse’s behavior poses a danger to the children, the court can consider it in allocating custody, but not in granting the divorce, allocating property or maintenance.
The hallmark of most litigation is establishing fault and damages. Without the right combination of the two, you cannot receive relief. In Divorce, the standard is very different. First and foremost, fault and damages have almost no relevance in divorce. Irreconcilable differences are the grounds for every divorce in Colorado. Further, no proof of irreconcilable differences is necessary other than the parties’ statement. Therefore, in Colorado, a spouse’s cheating, lying, or general misbehavior are not determinative in a divorce.
Damages typically are the calculable injury caused by someone’s negligence or intentional acts. In Divorce, despite a party being injured by their spouse’s actions, no money is awarded to cover such damages. Maintenance (also known as Alimony) may be available for the financially disadvantaged spouse. However, the parties’ economic situation and length of marriage determine the amount and duration of maintenance payments, not any wrongdoing.
So, what is determinative in divorce? “Equitable distribution” is the legal standard used in Colorado divorces to distribute marital property. Only “marital property” is subject to division and generally, all property (and debts) acquired during the marriage are considered marital property. Equitable doesn’t mean equal but is intended to mean “fair” under the circumstances of the marriage. “All relevant” factors can be considered in determining how to equitably distribute marital property.
It is always unnerving to allow a judge (or jury) to decide a case. However, in divorce, there is an even stronger incentive to settle prior to trial, because no one can accurately predict what a judge will consider “fair” when faced with feuding spouses. Furthermore, during preliminary hearings, judges’ practice standard instructions. These instructions include, “You better figure it out between yourselves because neither of you will be happy if I have to decide!”
Divorce proceedings are very different than in most contested cases. “No-fault” means that whichever party “caused” the divorce has no impact on the outcome. Often, this is a difficult concept for the aggrieved spouse to accept and they want to “prove” that their spouse is a lousy partner. It is important to understand that no matter what or who caused the divorce, such misconduct will not give one party the upper hand in a settlement. Realizing this concept can save emotional distress, time, and money. Divorce is not a forum to air a couples “dirty laundry,” because such matters are inconsequential when dissolving a marriage. Staying focused on the issues that really matter, will help reduce the emotional, financial, and physical impacts associated with the divorce process.
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