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FAQ
At Justin Tucker Law, we're committed to using our professional expertise to help you navigate family law cases. As a result, we’ve put together a list of answers to some of our clients' most frequently asked questions.
I WAS SERVED WITH A PETITION, NOW WHAT?
In Colorado, the first documents filed are called the Petition, Case Information Sheet, Case Management Order, and Summons. The Petition may ask for a dissolution of marriage (divorce), legal separation, annulment, establishment of child custody or Allocation of Parental Responsibility. In each case, one party will serve the other with those four documents, and that party is called the Petitioner. The other party then has 21 days to file and serve his or her Response (35 days if out of state), or risk having his or her position decided by default judgment. This party is called the Respondent. The Response is a JDF form, and is fairly easy to complete. This does not mean that the boxes you check do not have consequences. If you have been served with a Petition, you should consider meeting with us to discuss your best course of action.
HOW LONG WILL THE DIVORCE TAKE?
In Colorado, finalizing a divorce could take up to a year. The more agreements you come to outside of court, the more efficient the process can be.
I CAN'T FIND MY SPOUSE, CAN I STILL GET A DIVORCE?
In Colorado, you are required to make reasonable and diligent efforts to locate the other party to your divorce, but if that party is evading service, or simply cannot be located, the court may authorize you to serve the other party by publication. Once you have served them and your spouse has failed to respond, you may then move for a default judgment. This means that you may pursue a judgment without the other party's participation.
DO I HAVE TO GET AN ATTORNEY?
If both parties agree on everything in their divorce petition, you can work with the Family Court Facilitator to self-file. However, emotions usually run high during divorce, and disagreements over parenting-time, maintenance and asset division require both mediation and an experienced attorney that can strategically apply the laws and family court standards to get you the equitable settlement best for your family. Otherwise, you run the risk of making a mistake that costs you in court later.
WHAT IS JOINT DECISION-MAKING?
Under Colorado law, when parents have joint decision-making, this means that both parents share the right to make major decisions relating to the health, schooling, religion, and extra-curricular activities of their children. All other day-to-day decisions are made at the discretion of the parent the child is with at the time.
Joint decision-making can still be flexible to meet your particular needs. Parents with joint decision-making may still have in their order that one parent has the right to make educational decisions for example, or may also dictate that both parents’ agreement are required for these decisions.
HOW IS JOINT DECISION-MAKING DIFFERENT THAN SOLE DECISION-MAKING?
When a parent is granted sole decision-making, this parent alone is charged with making the major decisions relating to the health, education, and welfare of the child(ren). Sole decision-making is much less common than shared decision-making, which recognizes the joint role that parents usually have in raising a child (even parents who do not agree on what is best for the child). For example, sole decision-making may be appropriate in cases where one parent has committed domestic violence or the court finds it is not in the child’s best interests.
WHAT IS PARENTING-TIME?
Parenting-time refers to the fact that both parents share the physical care and parenting of the child. Parents who share parenting-time do not necessarily have an equal timeshare with the child, but rather each parent is acknowledged to have substantial and frequent contact with the child. For example, parents may have joint decision-making and parenting-time, but one parent has the children during the week and the other on weekends.
MY SPOUSE IS THE PRIMARY WAGE-EARNER IN OUR FAMILY. HOW DO I GET CHILD SUPPORT AND SPOUSAL MAINTENANCE?
If your spouse or former partner earns more than you do, he or she may be required to pay you child support or maintenance. Child support in Colorado is based on a formula and is unlikely to be altered by the judge. Spousal maintenance is determined in a different formula, and can be discussed and agreed upon in mediation, or altered by the judge.
WILL THEY GET MY RETIREMENT? WHAT ABOUT THE HOUSE?
Yes, your retirement will be divided, but there are ways to lessen what they get. Generally, the person who stays in the house keeps the house but that is dependent on your specific case factors. Talk to your attorney to find out what can be done in your circumstances.
MY EX IS A "JERK". CAN I REMOVE THEIR PARENTING RIGHTS?
Many clients ask whether a court will grant sole custody based on misbehavior on the part of the other parent. The truth is that while many parents feel that the other parent is harming them or their child in some way, parental rights are a BIG deal and are not taken away in Colorado family courts. Taking away parental rights happens in a completely different type of court, and is usually connected to criminal charges.
The family court starts with the assumption that it in the best interests of children to have positive and frequent contact with both parents. To convince them otherwise, you will need strong facts demonstrating that the best interests of the child are better served by limiting the other parent's time with the child. Limitation options include structuring your parenting orders to minimize contact between parents, limiting the other parent's parenting-time, or even requiring that visits be supervised. Again, Colorado family courts do not have the power to take away parental rights, that happens in a different court.
This does not mean that you shouldn't take steps to protect yourself and your child if you are in danger. If you have reason to believe that you are in physical danger, or your child is being abused or neglected, get help right away.
HOW CAN I GET AN ATTORNEY FOR FREE?
We are asked this question frequently, and we are not aware of any skilled family law attorneys in the San Luis Valley that work for free. Many attorneys will work with you to keep your costs down, or obtain an award of attorney fees. However, there are very few attorneys who can truly afford to work for free. Many lawyers offer a free consultation, usually 15 to 30 minutes. Colorado Legal Services can assign you a pro bono attorney if you fit their income guidelines. If you just have a simple question concerning the appropriate forms or court procedures, you can contact the Family Law Facilitator in your courthouse for guidance.
IS MY FILE PUBLIC?
If you are involved in a divorce, legal separation, annulment or guardianship proceeding, your documents are in a public file. This means that if a person goes to the courthouse with your name or file number, they can pull your file and review your documents. Talk with your attorney about currently available options that can help your information stay private.
WHAT ARE MY RIGHTS AS A GRANDPARENT?
In Colorado, great strides have been made in allowing grandparents to have visitation rights under certain circumstances. Giving grandparents custody is another matter that is still evolving. You'll want to call us to find out where you stand under current statutes.