Navigating the Challenges of a Same-Sex Divorce in Colorado
Same-sex marriage has been legally recognized in Colorado since October 7, 2014, marking a significant milestone in the fight for LGBTQ+ equality. However, with the right to marry comes the potential need for divorce, and same-sex couples may face unique challenges when dissolving their unions.
This guide will explore the intricacies of same-sex divorce in Colorado, addressing the legal considerations, emotional hurdles, and practical steps involved in navigating this complex process.
Legal Landscape Surrounding Same-Sex Divorce in Colorado
Equal Treatment Under the Law
In Colorado, there is no distinction between same-sex and opposite-sex divorces. There are no separate legal codes for LGBTQ+ couples. In same-sex divorce as in traditional divorce, both parties have the same rights, protections, and obligations throughout the process.
Residency Requirements
Colorado Revised Statutes section 14-10-106 specifies residency conditions that must be met by either spouse in order to apply for divorce in Colorado. Generally, one party must have been a resident of Colorado for at least 91 days prior to filing for divorce. This requirement applies equally to same-sex and opposite-sex couples, ensuring a level playing field for all divorcing parties.
No-Fault Divorce State
Colorado offers “no-fault” divorce. This means that when determining whether to grant a divorce, judges will not take into account the wrongdoing or fault of either spouse (such as adultery or drug usage). The court will also not factor wrongdoing, if any, in deciding on divorce matters such as division of assets and spousal maintenance (alimony).
The only legal ground needed for divorce in Colorado is that the marriage is “irretrievably broken,” meaning the couple can’t get along, and there’s no reasonable chance of reconciliation.
Unique Challenges in Same-Sex Divorce
While the legal framework for same-sex divorce in Colorado is largely the same as for opposite-sex couples, there are some unique challenges that LGBTQ+ spouses may face during the process.
Property Division
One of the most significant challenges in same-sex divorce cases is the division of marital assets. Many same-sex couples have been together for years or even decades before they were legally allowed to marry. This can create complications when determining which assets are considered marital property and subject to division during divorce.
In addition, Colorado courts may struggle to establish the length of the relationship accurately, which is crucial for asset allocation. For instance, if a couple has been together for 30 years but only married for two due to legal restrictions, the court may only recognize contributions made during those two years. This situation can lead to unfair asset division if not properly addressed.
Child Custody and Parental Rights
Colorado law recognizes the importance of maintaining relationships between children and both parents, regardless of biological connections. However, complications can arise when only one parent has a biological or legal relationship with the child.
Non-biological parents in same-sex relationships may need to take extra steps to secure their parental rights, such as second-parent adoption or obtaining a court order of parentage. Without these legal protections, a non-biological parent may struggle to maintain custody or visitation rights after divorce.
Emotional and Social Challenges
Divorce can be emotionally challenging for any couple, but same-sex couples may face additional stressors. These can include:
- Lack of family support due to unaccepting relatives
- Stigma within the LGBTQ+ community
- Feeling pressure to maintain a “perfect” relationship as representatives of the LGBTQ+ community
- Navigating a legal system that may not fully understand the nuances of same-sex relationships.
Protecting Your Rights in a Same-Sex Divorce
Property Division
To ensure fair property division in a same-sex divorce, it’s crucial to document the history of your relationship and financial contributions. This may include:
- Keeping records of joint purchases and investments made before marriage
- Documenting shared living expenses and financial arrangements
- Maintaining a timeline of your relationship, including significant milestones.
Your attorney can help you present this information to the court to argue for a fair division of assets, even if some were acquired before your legal marriage.
Child Custody, Child Support, and Parental Rights
To protect your parental rights in a same-sex divorce, consider the following steps:
- Pursue second-parent adoption or obtain a court order of parentage if you’re not biologically related to your child.
- Document your involvement in your child’s life, including school activities, medical appointments, and daily care.
- Work with your attorney to develop a comprehensive parenting plan that reflects the best interests of your child.
Spousal Support
If you’re seeking spousal support (alimony) or trying to protect yourself from excessive support obligations, it’s essential to:
- Document your financial contributions to the relationship, both before and during marriage
- Keep records of your income and expenses throughout the relationship
- Work with your attorney to present a clear picture of your financial situation and needs to the court.
Emotional Support During Same-Sex Divorce
Navigating a same-sex divorce can be emotionally challenging. Consider the following strategies to support your mental health during this difficult time:
- Seek therapy or counseling from a professional experienced in LGBTQ+ issues.
- Join support groups for individuals going through same-sex divorce.
- Lean on supportive friends and family members.
- Practice self-care through exercise, meditation, or other stress-reducing activities.
Steps in the Same-Sex Divorce Process
1. Consult with an Experienced Attorney
The first step in navigating a same-sex divorce in Colorado is to consult with an attorney experienced in LGBTQ+ family law matters. At Goldman Law, our skilled attorneys understand the unique challenges faced by same-sex couples during divorce. We can provide guidance tailored to your specific situation and help protect your rights throughout the process.
2. File for Divorce
Once you’ve decided to proceed with the divorce, you’ll need to file a Petition for Dissolution of Marriage with the appropriate Colorado court. This document officially begins the divorce process and outlines your desired outcomes regarding property division, child custody, child support, and spousal support.
3. Negotiate a Settlement
In many cases, divorcing couples can reach a settlement agreement without going to trial. This process may involve mediation or collaborative law techniques to resolve issues such as property division, child custody, and spousal support. Working with an experienced attorney can help ensure that your interests are protected during these negotiations.
4. Attend Court Hearings
If you and your partner are unable to come to a consensus on every item, you might have to go to court appearances where a judge will decide on contentious issues. Your attorney will represent your interests in court and present evidence to support your position.
5. Finalize the Divorce
Once all matters are resolved, whether through agreement or court decision, the judge will issue a final divorce decree. This officially ends your marriage and outlines the terms of your divorce, including property division, child custody arrangements, and any support obligations.
Legal Protections for LGBTQ+ Individuals in Colorado
Colorado has strong anti-discrimination laws that protect LGBTQ+ individuals in various aspects of life. For instance, the Colorado Anti-Discrimination Act prohibits discrimination based on sexual orientation or gender identity in employment, housing, public accommodations, and other areas.
These protections ensure that same-sex couples can expect fair treatment throughout the divorce process, from interactions with court personnel to decisions made by judges.
Recent Legal Developments: Same-Sex Common Law Marriage
The laws pertaining to same-sex divorce are still changing. In 2021, the Colorado Supreme Court addressed two important cases related to same-sex common law marriages (in Marriage of Hogsett & Neale and in Marriage of LaFleur & Pyfer). These decisions affirmed that same-sex common law marriages could be recognized retroactively, even if they were established before the legalization of same-sex marriage nationwide.
These rulings provide important protections for same-sex couples who may have been in committed relationships for years before legal marriage was an option. They ensure that these couples can access the same rights and protections in divorce as those who were able to marry legally earlier.
Frequently Asked Questions (FAQ)
Q: How long does a same-sex divorce take in Colorado?
The duration of a same-sex divorce in Colorado can vary significantly depending on the complexity of the case and the level of agreement between the spouses. At minimum, there is a 91-day waiting period from the date of filing before a divorce can be finalized. This period is mandated by Colorado law and applies to all divorces, regardless of sexual orientation.
For uncontested divorces where both parties agree on all issues, the process can be completed relatively quickly, often within three to six months after the waiting period. However, if there are disputes over property division, child custody, child support, or spousal support, the process can take much longer, potentially a year or more.
Factors that can extend the duration of a same-sex divorce include:
- Complex asset division, especially for couples who were together long before legal marriage was an option
- Child custody disputes, particularly if there are questions about parental rights
- Disagreements over spousal support
- The need for mediation or court hearings to resolve disputes.
An experienced attorney can help streamline the process and advocate for your interests, potentially reducing the overall duration of your divorce.
Q: How is child custody determined in same-sex divorces in Colorado?
In Colorado, child custody (referred to as “allocation of parental responsibilities” in the state) is determined based on the child’s best interests, regardless of the parents’ sexual orientation. The court considers various factors when making custody decisions, including:
- The child’s relationship with each parent and other family members
- The child’s adjustment to home, school, and community
- The mental and physical health of all parties involved
- The ability of each parent to encourage a relationship between the child and the other parent
- The wishes of the child (if they’re mature enough to express a preference).
For same-sex couples, additional considerations may come into play, particularly if only one parent has a biological or legal relationship with the child. In such cases, it’s crucial for non-biological parents to have established legal parentage through adoption or court order to ensure their parental rights are protected during divorce proceedings.
Colorado courts generally favor joint custody arrangements that allow children to maintain strong relationships with both parents. However, the specific custody arrangement will depend on the unique circumstances of each family.
Q: How is property divided in a same-sex divorce in Colorado?
Colorado is an “equitable distribution” state, meaning that marital property is divided fairly, but not always necessarily equally, between spouses during divorce. This principle applies to both same-sex and opposite-sex divorces.
Marital property generally includes all assets and debts acquired during the marriage, regardless of which spouse’s name is on the title or account. Separate property, which includes assets owned before marriage or received as gifts or inheritances during marriage, typically remains solely with the original owner.
For same-sex couples, a unique challenge can arise when determining what constitutes marital property. Many same-sex couples were in committed relationships long before they could legally marry. In such cases, it may be argued that assets acquired during the relationship, even before legal marriage, should be considered marital property.
Factors considered in property division include:
- The contribution of each spouse to the acquisition of marital property
- The value of separate property set apart to each spouse
- The economic circumstances of each spouse at the time of division
- Any increases or decreases in the value of separate property during the marriage.
It’s important to work with an attorney who understands these nuances and can advocate for a fair division of property that takes into account the full history of your relationship.
Q: Can I get alimony (spousal maintenance) in a same-sex divorce in Colorado?
Yes, alimony (referred to as “spousal maintenance” in Colorado) is generally available in same-sex divorces, just as it is in opposite-sex divorces. The purpose of spousal maintenance is to provide financial support to a spouse who may be economically disadvantaged after divorce. However, not everyone who seeks alimony may receive it. The court will still need to examine whether the granting of alimony is indeed warranted.
In Colorado, courts consider several factors when determining whether to award spousal maintenance and in what amount:
- The financial resources of the spouse seeking maintenance
- The standard of living established during the marriage
- The duration or length of the marriage
- The age and physical and emotional condition of the spouse seeking maintenance
- The time it takes for the seeking spouse to acquire sufficient education or training and find appropriate employment
- The ability of the paying spouse to fulfill their own needs while paying alimony.
For same-sex couples who were together long before legal marriage was an option, courts may consider the entire length of the relationship, not just the legal marriage.
Colorado law provides a formula for calculating the amount and duration of spousal maintenance for marriages lasting between 3 and 20 years. However, judges have discretion to deviate from this formula based on the specific circumstances of each case.
Q: How does Colorado law handle same-sex divorces for couples married in other states?
Colorado recognizes same-sex marriages performed in other states, and therefore, same-sex couples married elsewhere can seek divorce in Colorado as long as they meet the state’s residency requirements. Either spouse must have resided Colorado for 91 days before filing for divorce.
The process for divorcing in Colorado is the same regardless of where the marriage took place. However, there may be some complications if the couple entered into a civil union or domestic partnership in another state before same-sex marriage was legalized. In such cases, it’s crucial to work with an attorney who understands how these different types of legal relationships are treated under Colorado law.
If there are significant ties to another state (such as property ownership or child custody arrangements), consider whether Colorado is the most appropriate jurisdiction for the divorce. An experienced attorney can help you navigate these jurisdictional issues and ensure that your divorce is handled in the most advantageous manner possible.
Call Us: Let Goldman Law Assist and Protect You in a Complex LGBTQ+ Divorce in Colorado
A same-sex divorce in Colorado presents unique challenges, but with the right legal guidance and support, you can protect your rights and interests throughout the process. At Goldman Law, we provide compassionate, knowledgeable representation to LGBTQ+ individuals facing divorce. Our experienced attorneys understand the nuances of same-sex divorce and can help you navigate this difficult time with confidence.
If you’re considering a same-sex divorce in Colorado or have questions about your rights, don’t hesitate to reach out to Goldman Law. We’re well-equipped to provide sound legal guidance and legal representation, even in complicated divorce situations. Contact us today at (303) 656-9529 to schedule a consultation with one of our experienced family law attorneys.
