FAQ Family Law

Marriage is a legally-binding relationship between two people.

In the US, this means the couple now have a number of legal responsibilities and rights, including:

• Inheriting property from each other
• Making medical and financial decisions for each other
• Ability to open a joint bank account and/or tax return
• Ability to foster and adopt children together
• Sponsoring each other for immigration purposes.

In most societies, marriage is considered a social and cultural institution that is an important part of the community. It is typically marked by a formal ceremony, during which the couple makes vows to each other in the presence of friends, family, and a qualified officiant, such as a minister, rabbi, or justice of the peace.

Same-Sex Marriage

Same-sex marriage is a legally recognized union of two people of the same sex.
On June 26, 2015, the Supreme Court of the United States issued a landmark ruling in the Obergefell v. Hodges case, which recognized that same-sex couples have the same fundamental right to marry as opposite-sex couples in all 50 states.

This requires states to issue marriage licenses to same-sex couples and to recognize same-sex marriages performed in other states. This means that same-sex couples have the same legal rights and responsibilities as opposite-sex couples when it comes to marriage.

There are many different forms of marital agreements (besides a legally-binding marriage) from common law marriage to civil unions and domestic partnerships.

Common Law Marriage

Common law marriage, a.k.a. informal marriage or “marriage by habit and repute,” is a marriage where the couple lives together and portrays themselves as married to the public, but haven’t obtained a marriage license. This means it is not formally recognized by the federal government and in most states.

In fact, common law marriage is only recognized as an official marriage in the following states:

• Colorado
• Iowa
• Kansas
• Montana
• New Hampshire
• Oklahoma
• Rhode Island
• South Carolina
• Texas
• Utah
• District of Columbia

And in these states, the couple has to meet strict requirements, including:

• Both people must be over the age of 18
• The couple must have the intent to be married.
• The couple present themselves out to the public as being married. This may involve using the same last name, introducing each other as “husband” or “wife,” and filing joint tax returns.
• The couple must live together as husband and wife.

Note: If you have a common law marriage in one of the states that recognize it and you split up, you need to file for a divorce.

Civil Unions

Civil unions are a legal arrangement that provides some, but not all, of the rights and benefits of marriage to same-sex couples.

In a civil union, the couple needs to obtain a “civil union certificate” and have a civil union ceremony that recognizes their relationship. They’ll also need to provide necessary documentation (i.e. ID, proof of residence, etc) and pay any state fees.

While civil unions provide some legal protections and benefits to same-sex couples, they are not the same as marriage and do not have all the same legal rights and benefits.

In fact, civil unions are only recognized in these 5 US states:

• Colorado
• Hawaii
• Illinois
• Vermont
• New Jersey

The specific protections and rights provided by a civil union in these five states vary but typically include some or all of the following:

Property rights

Couples in a civil union may have the right to own property together, to inherit property from each other, and to make medical and financial decisions for each other.

Tax benefits

Couples in a civil union may be able to file state tax returns as a married couple and may be entitled to certain state tax benefits.

Health insurance benefits

Couples in a civil union may be able to add each other to their health insurance plans and may be entitled to certain health insurance benefits.

Retirement benefits

Couples in a civil union may be entitled to certain pension and retirement benefits, such as the ability to inherit a pension or the right to receive survivor benefits.

And, civil unions are not recognized by the federal government or in any of the other 45 states. This means that same-sex couples who are in a civil union are not entitled to the same federal benefits and protections as same-sex married couples.
In addition, civil unions can expire, be annulled, or be dissolved. However, the process varies from state to state.

For instance, in some states, a civil union can expire after a certain period of time if it is not renewed

In addition, in some states, a civil union must be dissolved or terminated by either party. The process will look similar to going through a formal divorce process.

In other states, a civil union can be annulled, which means that it is declared void or invalid. This may be possible if one party was not legally able to enter into the union (e.g., because they were already married), or if the union was entered into under duress or fraud.

Given the process varies widely from state to state, we recommend consulting a family law attorney and checking with the relevant government agencies to determine the specific process in your state.

Domestic Partnerships

A domestic partnership is a legally recognized relationship between two people who live together and are in a committed relationship, but are not married.

Domestic partnerships are similar to civil unions in that they provide certain legal protections and benefits to eligible couples who are not able to marry.

While the eligibility requirements can vary from state to state, the general requirements include:

• Both people must be over the age of 18
• Both partners are not married or in another domestic partnership
• Both partners are in a committed relationship and share a domestic life

In addition, in a domestic partnership, the couple must obtain a “domestic partnership declaration.” The couple also have to register their domestic partnership with their state government, provide necessary documentation, and pay applicable fees.

Just like with civil unions, domestic partnerships are not the same as marriage and are only recognized in a handful of states, including:

• California
• District of Columbia
• Maine
• Nevada
• Oregon
• Washington
• Wisconsin
• Hawaii (However, domestic relationships are referred to as reciprocal beneficiaries in Hawaii)

The level of protections that domestic partners have across insurance, tax, retirement and property rights also varies across these states.

In addition, domestic partnerships are not recognized by the federal government or in any state that is not listed above.

If you want to convert your domestic partnership into a legally-binding marriage, it is a good idea to consult a family law attorney. That’s because in some states you can convert a domestic partnership into a marriage. In other states, you have to legally dissolve the domestic partnership before getting married.

The main difference between a prenuptial agreement and a postnuptial agreement is the timing of when they are made. A prenuptial agreement is made before a couple gets married, while a postnuptial agreement is made after a couple is already married.

Prenuptial agreement

A prenuptial agreement, also known as a premarital agreement or prenup, is a legally binding agreement that is made by a couple before they get married.

The most common reasons why you should get a prenup are if you have significant assets, income, or children from a previous marriage.
The purpose of a prenup is to define the financial and property rights of each spouse in the event of a divorce or the death of one spouse.

They can cover a wide range of potential sticky issues like:

• Protection of premarital assets
• Division of assets
• Alimony
• Property ownership
• Business ownership
• Division of debt

Prenups must meet certain legal requirements in order to hold up in court. For instance, infidelity clauses and anything related to child custody and child support won’t hold up in divorce court.

There are two parts to getting a prenup. First, it is having the conversation and getting on the same page as your significant other on what should be in the prenup.

Then, you need to go through the legal process of getting it drafted and filed. For this part, it is a good idea to consult with a lawyer to ensure that your prenup is properly drafted.

Postnuptial agreement

On the other hand, a postnuptial agreement, also known as a postmarital agreement, is a legally binding agreement that is made by a couple after they are married.

Like a prenup, a postnuptial agreement is used to define the financial and property rights of each spouse in the event of a divorce or the death of one spouse. It can cover all of the same things as a prenup.

The most common reason for a postnuptial agreement is to make changes to financial arrangements, often because of a significant financial event.

Just like with prenups, we recommend consulting with an attorney when drafting one.

Divorce is a legal process that requires a legal reason and court judgment to end the marriage.

During the process, the judge will resolve other issues related to the marriage before the divorce is finalized. For instance, some issues that will need to be decided include:

• Dividing assets
• Custody and support of children/ Allocation of Parental Responsibilities
• Alimony/ Maintenance
• Determining who can live in the marital home
• Dividing debts

To start the process, one spouse must assert that the marriage is “irretrievably  broken”.

Does common law marriage require a divorce?

If the court determines your common-law marriage is valid, you will need to obtain a traditional divorce to end it.

What if both spouses don’t agree to divorce?

The divorce process is smoother if both parties agree to end the marriage. However, you don’t need your spouse’s agreement to proceed with a divorce. The law does not force you to stay in a marriage.

You are legally entitled to a divorce in Colorado, even if your spouse doesn’t agree.

Do spouses have to go to court to get a divorce?

While a divorce is only final when a judge signs a written divorce decree or judgment, you do have options other than going to court to resolve some or all of the issues. I encourage my clients to take this route if at all possible. In fact, in Colorado the court will order the parties to attend mediation (a meeting with a 3rd party “neutral” to see what issues can resolve without court intervention, which is preferrable when possible).

Any agreements made between the parties are then submitted to the court for approval (which is almost always given).

If the parties are unable to resolve the issues outside of the court, then the judge will ultimately decide the issues after a hearing or trial. Again, my strong belief is that, if possible, it is better for all involved if the resolution of the issues can be had outside of the courtroom. However, if that is not possible, I am always ready to be your experienced, and assertive courtroom advocate!

One spouse must file a legal petition requesting to terminate the marriage to get a divorce. The petition typically must show that at least one person meets Colorado’s residency requirements.

The divorce process can take 12 months or more. So you can request temporary court orders at this point to address child support, child custody, and spousal support until the divorce agreement is finalized.

Divorce mediation

Divorce mediation provides an alternative way to negotiate your divorce agreement without going through a court trial.

In mediation, a trained, third-party mediator assists you and your spouse in reaching an agreement so you can finalize your divorce. For instance, a mediator may help a couple address issues regarding the division of assets, child support, child custody, and alimony.

Unlike a judge, a mediator does not make the decision. Instead, they facilitate the discussion to help the spouses come to a mutual agreement.

Divorce mediation is typically cheaper and faster than going before a judge. Importantly, mediation gives you a sense of control over what your life will look like moving forward. It has been my experience that when couples can mediate their issues, they are in a better position to move forward with their lives.

There is not a set approach for determining alimony (called “maintenance” in Colorado). There are maintenance guidelines that attorneys and judges refer to when determining maintenance but they are not binding on the Court. The Court will also look at a variety of factors that are spelled out in the statutes governing divorce and maintenance in Colorado. Those factors include things like the ability of the parties to be self sufficient, the length of the marriage, and the lifestyle of the parties during marriage.

The parties can always agree on an amount and duration for maintenance. Short of that, the Court, if appropriate, will order an amount of maintenance and a duration for payment, which may be subject to modification if there is a material change of circumstances in the future.

Pursuant to Colorado law, both parents are responsible for the financial support of their children. Pursuant to that duty, the court may order a parent to pay child support to the other based on a host of factors.

Colorado has Child Support Guidelines, which is basically a formula based upon a these factors.

For instance, the court takes into account that if the children are primarily living with one parent, that parent is contributing to the children’s support. Therefore, the other parent is likely the one to make child support payments — which could be either the father or the mother, depending on the situation.

Additionally, the court will consider each parent’s gross monthly income. These are just a couple of factors that the court will consider.

Parents who don’t pay their mandatory child support payments are in contempt of court. The court will tally the missed payments, categorized as in arrears. This allows the court to start enforcement procedures to recover the payments.

The parent who receives payments can request help from the court to enforce the child support order.

Enforcement Procedures

Delinquent parents who owe back child support may have their:

• Tax refund sent to the child’s other parent
• Wages garnished
• Driver’s license suspended
• Passport denied
• Professional licenses suspended

The paying parent can ask for modifications to the child support order if they’re having trouble making payments. But the request is not retroactive, and they must prove a substantial change in their circumstances to justify the change.

Colorado no longer utilizes the term “custody”. Instead, Colorado allocates “Parental Responsibilities”  between the parents.

Parental Responsibilities include Parenting Time, which is a detailed schedule outlining when the children will be in the care of each parent. Parental Responsibilities also include Decision Making, which is an order stating which parent will have the authority to make major decisions for the children. Oftentimes, the court will order the parents to make these decisions jointly.  However, there are times when the court will order that one has the authority to be the sole decision-maker for the children. 

Parents can determine the allocation of Parental Responsibilities if they can work together on a solution. This can happen during the mediation process and is preferable if possible. But just like any other issues that arise during the process, if parties are unable to reach agreements, the courts will make the decisions in the “best interests” of the children.

Courts will consider a history of domestic violence when deciding custody and visitation.

Domestic violence can contribute to significant difficulties in communication between parents and raise safety issues for either a parent, the child, or both. These factors can negatively impact the child. For instance, a court would not want a child in a situation where they may witness domestic violence or be at risk of child abuse.

Safety

However, the court may offer additional solutions that ensure the child’s safety and allow the person to see them. For example, a judge may order supervised visits or request the person attend therapy.

The safety and stability of the living situation are important considerations when judges make decisions about custody, especially physical custody. The judge needs to ensure that the child is in a safe environment.

An incarcerated parent can’t have custody of a child. Additionally, visitation rights may also be temporarily suspended.

The court typically decides what happens with custody and visitation rights once the individual is released from jail. For instance, a judge may issue a temporary or permanent change in custody depending on the crime and charges against the parent.

If possible, prepare a plan in advance for situations when the military parent is deployed or transferred. Establishing a set contingency plan can help reduce stress on all parties involved.

In many states, a custodial parent who is deployed for military duty may ask the court to designate another person to have temporary custody of the child while they are away.

The adoption process allows an adult to become the legal parent of a child who is not biologically their own. An adoptive parent accepts full custody and is legally responsible for the child’s support costs and obligations.

As part of the process, the biological parent or parents no longer have parental rights once the adoption is finalized. However, sometimes the birth parents can be awarded some rights if requested.

In Colorado the consent of both biological parents listed on the birth certificate or have established paternity is necessary for the child to be adopted. An exception is if one biological parent is found unfit, has abandoned the child, or has failed to pay child support.

There isn’t one adoption code in the United States that applies throughout the country. Instead, each state has sets of regulations, laws, and policies. But some federal legislations also help inform adoption laws.

If you decide to adopt, you first must determine the type of adoption that is best for you.

Types of adoption

• Adopting through the foster care system
• Private adoption through an agency, often run by charities or social service agencies
• Identified or designated adoption, which is typically used when the birth and adoptive families have found each other but use an agency to oversee the process
• Relative adoption, which includes any adoption when the child is related to the adoptive parent by blood or marriage (such as a stepparent, grandparent, or aunt)
• International adoption
• Adopting an adult, often done for an inheritance, after a foster child has aged out of foster care, or when permanent caregiving is needed

Each type of adoption and state has its own requirements, such as waiting periods, rules, paperwork, and standards. These requirements are important to ensure everyone involved ends up with the best circumstances. So adoptive parents should carefully review the criteria involved in their specific situation.

A paternity action is a legal process to establish who is legally the father, especially when parents aren’t married or if there is a conflict.

This civil action can be started by the mother to gain child support from the alleged father or filed by the biological father to receive parental rights.

Unmarried parents

This determination is particularly essential for unmarried parents as it helps establish the following:

• Child support
• A father’s legal rights
• The child’s eligibility to receive benefits through the father
• The child’s access to health information from the father’s side

Paternity ensures that both legal parents’ rights and responsibilities are upheld. However, a separate legal process may be required to establish the specifics of any child support and custody agreements needed.

There are multiple ways to establish paternity that fit different situations.

In most states, paternity is determined by:

Paternity by assumption

The husband is presumed to be the legal father if the mother is married. However, a married man may legally challenge paternity if he believes he is not the father. Genetic testing (a DNA test) can be requested in this case.

Paternity by agreement

Both parties can sign an Acknowledgment of Paternity (AOP) form (also called an Affidavit of Paternity) if neither parent disputes paternity. This form helps unmarried parents voluntarily establish paternity and is signed by both parents. Hospitals may offer this form to a father present at the child’s birth. It can also be signed after the child’s birth. However, a fee may be involved, which includes changing the birth certificate.

Paternity set through legal action

For paternity disputes, the mother or father may file a paternity action to use the legal system to establish paternity. DNA testing can be court-ordered in contested paternity. The court can also use circumstantial evidence, such as if a man has publicly presented himself as the father.

In Colorado, the mother or alleged father can file a paternity action to start the legal process.

Legal process

The case will typically start with the filing party completing paperwork with the court and paying a filing fee. Papers regarding the lawsuit will be served to the other party. That person has a set amount of time to respond to the complaint. A court date will be set.

An agreement can be reached before the court date if both parents agree to the legal paternity and sign a consent order. The court will typically adopt that order as the final order.

The case will be presented before a judge if an agreement isn’t reached before the court date.

Both parties must show up on the court date. If the alleged father does not appear, the judge can choose a default judgment — making him the legal father.

The court may also order a genetic test to help establish paternity.

If a paternity action is filed against you, you should respond. If you don’t, a court can reach a final order without you, leaving you unable to present your side.

Papers

When you’re served, read the papers (or complaints) carefully, so you understand what the other party is requesting. Additionally, keep track of your deadline to ensure a default judgment isn’t entered against you.

You will have time to gather information and evidence to present your side and to respond to the complaint.

For instance, the alleged father can file an answer or response, including information such as genetic testing to show he is not the biological father.

However, depending on the circumstances, the court can still decide that a man is the legal father, even if he isn’t the biological father. So, it’s important to carefully respond to the paternity action and address all complaints listed.

The first step is to ensure legal paternity has been established. The child’s mother can initiate a paternity action against the alleged father to set legal paternity. If the alleged father refuses to acknowledge paternity, the courts will often request for him to complete genetic (DNA) testing.

Refusal

The alleged father can legally refuse to complete the testing. However, he will face consequences. For example, a judge can hold him in contempt of court, require him to pay fines, or enter a default judgment stating he is the legal father.

Once paternity is determined, both parents have legal rights and responsibilities regarding the child, including financial obligations, visitation, and custody.

A father that refuses to acknowledge a legally established paternity is still responsible for the child, including any required child support.