I am looking into divorce versus legal separation in the state of CO. My husband has been out of work for over two years and has no income, leaving me as the sole breadwinner. What is the possibility of my having to pa alimony upn completion of my ...

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I am looking into divorce versus legal separation in the state of CO. My husband has been out of work for over two years and has no income, leaving me as the sole breadwinner. What is the possibility of my having to pay alimony upon completion of my divorce?

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DakotaLegal's picture

 

 
 
It almost sounds as though you might be looking at divorce as a partial solution to severe income problems. On the other hand, the New York Times also reported that tough economic times have had the result of some people delaying a separation or divorce. At any rate, the degree of mutual agreement that either a divorce or separation is the best thing will have a lot to do with which course you take…and how you do it. That’s why so many couples go through some counseling to be sure they at least try to improve their communication: even if it’s for the purpose of beginning to live apart. Here are the official forms and flowcharts to explain, or even start, either dissolution or separation: http://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=68.
 
Other court cases have shown how some people try to hide certain assets from a divorce, too. Though your husband may not have been working much in the last two years, you may have claims to many of the things he considers to be “his.” There may be, for example, coin collections, real estate, or vehicles that ether one of you considers to be separate property. If these assets were bought with mixed money (say, from a joint checking account with both your names on it), then it’s probably community property and equally owned.
 
So you’ll want to look at Colorado’s community property rules, to get a general rule about what is jointly owned. Here’s an article, which can help you develop a checklist of assets: http://www.aaml.org/sites/default/files/valuation%20of%20marital%20assets%20bib-financial.pdf. The article can also help if bankruptcy is likely before, during, or after a separation or divorce. A bankruptcy can affect the amount of spousal maintenance.
 
Regardless of who owns what, courts take a very dim view of anything less than a complete and honest disclosure of how valuable assets. Here’s a sample case, Thornton v. Thornton, where a husband went to great lengths to hide assets. http://caselaw.findlaw.com/sc-supreme-court/1242235.html. These calculations of assets are also going to be at the heart of deciding whether maintenance payments to the other spouse are necessary, and if so, how much.
 
There are important differences between separation and divorce when it comes to protecting your assets. So we’ll look at your question in two ways: first, the relative benefits between divorce and separation in Colorado and second, the low odds of your paying some sort of alimony to your (perhaps) future ex-husband.
 
I.                    Comparing Some Benefits Between Divorce Or Separation
 
Just as you’d expect, there are important questions to be settled, affecting divorce versus separation, especially when there is property and/or children involved. Let’s talk about those issues, though, in terms of what used to be called alimony….in Colorado, maintenance. The basic idea of maintenance in Colorado is to make sure there’s some equality and fairness between lifestyles, especially if one spouse has been (as in your case) the breadwinner. But the court can also be educated, to learn if your husband had been the traditional breadwinner: be ready to show the role of income, including health benefits and retirement, over the whole marriage and not just the last two years.
 
The biggest drawback to a separation instead of divorce is the way financial planning, and financial troubles, tends to drag on with separation. With separation, there’s usually more uncertainty about who owns what, mutual expenses (from mortgages to joint accounts), and how to sell things. It only takes 90 days to get a divorce after filing in Colorado, so this adds a high degree of certainty for handling separation of community debts. Since you’re working, this would appear to be in your advantage.
 
II.                 Alimony (Maintenance) Rules In Colorado
 
As with many states that have updated their older divorce rules, there’s now a different concept than “alimony.” Support paid by one former or divorcing spouse is now called ‘maintenance.’ Hopefully your current husband has no intent to try and get alimony: this would allow you to get both a more affordable divorce. You can also check your income eligibility for low cost legal aid in Colorado…you can even apply online. http://www.coloradolegalservices.org/.
 
The basic reason for having maintenance is that a court will allow it only for both a good reason (inability to work) and for a limited period…to maintain a basic standard of living. Since it seems your husband can work, but has simply been frustrated by the economy’s lack of work, you can argue he should be able to get a job. There may be issues related to his care for children, or if he’s disabled, or if your income is vastly greater than his. Here’s a case from Colorado, where one spouse was ordered to pay alimony until either death or remarriage…so it does happen. http://caselaw.findlaw.com/us-10th-circuit/1370077.html Otherwise, if all things seem equal between you two, he will probably (probably) not get alimony.

 

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DakotaLegal's picture

 

 
 
It almost sounds as though you might be looking at divorce as a partial solution to severe income problems. On the other hand, the New York Times also reported that tough economic times have had the result of some people delaying a separation or divorce. At any rate, the degree of mutual agreement that either a divorce or separation is the best thing will have a lot to do with which course you take…and how you do it. That’s why so many couples go through some counseling to be sure they at least try to improve their communication: even if it’s for the purpose of beginning to live apart. Here are the official forms and flowcharts to explain, or even start, either dissolution or separation: http://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=68.
 
Other court cases have shown how some people try to hide certain assets from a divorce, too. Though your husband may not have been working much in the last two years, you may have claims to many of the things he considers to be “his.” There may be, for example, coin collections, real estate, or vehicles that ether one of you considers to be separate property. If these assets were bought with mixed money (say, from a joint checking account with both your names on it), then it’s probably community property and equally owned.
 
So you’ll want to look at Colorado’s community property rules, to get a general rule about what is jointly owned. Here’s an article, which can help you develop a checklist of assets: http://www.aaml.org/sites/default/files/valuation%20of%20marital%20assets%20bib-financial.pdf. The article can also help if bankruptcy is likely before, during, or after a separation or divorce. A bankruptcy can affect the amount of spousal maintenance.
 
Regardless of who owns what, courts take a very dim view of anything less than a complete and honest disclosure of how valuable assets. Here’s a sample case, Thornton v. Thornton, where a husband went to great lengths to hide assets. http://caselaw.findlaw.com/sc-supreme-court/1242235.html. These calculations of assets are also going to be at the heart of deciding whether maintenance payments to the other spouse are necessary, and if so, how much.
 
There are important differences between separation and divorce when it comes to protecting your assets. So we’ll look at your question in two ways: first, the relative benefits between divorce and separation in Colorado and second, the low odds of your paying some sort of alimony to your (perhaps) future ex-husband.
 
I.                    Comparing Some Benefits Between Divorce Or Separation
 
Just as you’d expect, there are important questions to be settled, affecting divorce versus separation, especially when there is property and/or children involved. Let’s talk about those issues, though, in terms of what used to be called alimony….in Colorado, maintenance. The basic idea of maintenance in Colorado is to make sure there’s some equality and fairness between lifestyles, especially if one spouse has been (as in your case) the breadwinner. But the court can also be educated, to learn if your husband had been the traditional breadwinner: be ready to show the role of income, including health benefits and retirement, over the whole marriage and not just the last two years.
 
The biggest drawback to a separation instead of divorce is the way financial planning, and financial troubles, tends to drag on with separation. With separation, there’s usually more uncertainty about who owns what, mutual expenses (from mortgages to joint accounts), and how to sell things. It only takes 90 days to get a divorce after filing in Colorado, so this adds a high degree of certainty for handling separation of community debts. Since you’re working, this would appear to be in your advantage.
 
II.                 Alimony (Maintenance) Rules In Colorado
 
As with many states that have updated their older divorce rules, there’s now a different concept than “alimony.” Support paid by one former or divorcing spouse is now called ‘maintenance.’ Hopefully your current husband has no intent to try and get alimony: this would allow you to get both a more affordable divorce. You can also check your income eligibility for low cost legal aid in Colorado…you can even apply online. http://www.coloradolegalservices.org/.
 
The basic reason for having maintenance is that a court will allow it only for both a good reason (inability to work) and for a limited period…to maintain a basic standard of living. Since it seems your husband can work, but has simply been frustrated by the economy’s lack of work, you can argue he should be able to get a job. There may be issues related to his care for children, or if he’s disabled, or if your income is vastly greater than his. Here’s a case from Colorado, where one spouse was ordered to pay alimony until either death or remarriage…so it does happen. http://caselaw.findlaw.com/us-10th-circuit/1370077.html Otherwise, if all things seem equal between you two, he will probably (probably) not get alimony.