What is the Difference Between Legal Separation and Divorce?

When filling out official documents you usually have the option of being single, divorced, or separated.  I didn’t realize until I was older that listing yourself as separated on a form had more implications than “we don’t live together anymore.”  But I never really understood the purpose of separation when you can get a divorce.  I admit, even after practicing a few months in family law, I still didn’t know why.  Now, though, I understand that there is a good reason to leave the option available.

Some historical context is important.  I have to take you way back to the olden days of the 1960s.  Before 1970 a couple could only get divorced for a very specific set of reasons, and one party had to be at fault: (1) adultery, (2) abandonment, (3) felony (domestic violence), and a couple of other minor variations.  That meant that it was very difficult to get a divorce, and people would live in misery for years.  There is even a famous case of a person in New York City who made her living getting “caught” in a hotel room by a “private investigator” with the husband, so that they could prove adultery.

In 1970 California introduced the concept of a “no fault divorce.”  This means that the court didn’t have to find that either person was an evildoer, just that they didn’t want to be married anymore.  The act, signed into law by then governor Ronald Reagan, set forth a new system where the parties would receive counseling through the courts, and then if they still wanted a divorce, they could proceed.  It was designed to get rid of the lies (or, more politely, “legal charades”) and just acknowledge life the way that it really is.  The original law had a thorough system of counselors and assistance before court, they hoped to keep more marriages together that way.  Unfortunately there have always been budget shortfalls, and so the full system never really got off the ground.  But the no fault divorce stuck.

Before no fault divorce was widely adopted, though, the courts needed a way to deal with the legions of unhappy couples who did not want to be together anymore, but who did not qualify for a divorce.  If the courts ignored the problem then there would be thousands of people with no recourse if the other party was not being fair in a separation.  So the courts recognized separation.  This option did not need fault, only that the parties did not live together anymore.  This is the reason for the quaint old name for the procedure: “separation from bed and board.”  Before a no fault divorce, then, legal separation afforded couples a way to divide their assets and debts but avoid a full divorce.

So why do we still have legal separation if it is so easy to get a divorce?  One of the most cited purposes is for religious reasons.  Some deeply religious people believe that divorce is a sin, but also do not want to live with their spouse any more.  A legal separation gives them the avenue to divide their possessions but to not be “divorced.”  Another good reason is that some couples, while they are having troubles, need to separate but don’t necessarily want to get a divorce.  This is particularly the case where there are children involved.  Where a childless couple may just divide the assets among themselves, a couple with children will probably need a child support and visitation order in place.  This allows the parents to work through their issues while still having a court sanctioned parenting plan.  The best reason is that a legal separation is not a divorce.  If the couple reconciles then it’s like the court case never happened.  And they can change it to a divorce at any time.  It offers flexibility that a divorce does not.

If you are thinking about a legal separation or divorce consider the following:

1. Do I think that we might get back together again in the next 12-24 months?
2. Do I have religious feelings that push me one way or the other?
3. Do I want time to think about this before getting a full divorce?
4. Is there a reason to pay all of the court costs to get this official, or can we just come to an agreement?  If you can come to an agreement, both of you write it down and sign it.  That may be better than going through the process of going to court.

If the two of you don’t agree on what will happen, don’t hesitate to consult a lawyer.  We can tell you your options, and how the system works in your state.  If you live in Colorado and would like to know your options, please visit MRutherfordLaw.Com and contact me.

Disclaimer: Nothing on this page is intended as legal advice, and should not be taken as legal advice.  If you have a question you should consult with a lawyer.  Meggin is certified to practice law only in the state of Colorado.  Because of Colorado’s specific and often progressive laws this information will probably not apply to any other state.  If you live in another state you should consult with a lawyer near you.  This post does not confer any attorney client relationship, and no such relationship is formed until you and I have entered into an express contract.  If you have any questions about any information on my blog please contact me at Meggin at MRutherfordLaw.com .

Why “Parenting Time” and not “Custody”

Family law in Colorado is different than almost anywhere else in the country.  We are blessed with an active and progressive bar association and bench (lawyers and judges) that takes an active role in making the law as good as possible.  Don’t get me wrong, it is certainly not perfect.  But it is much better than many other states out there.  One of the big differences in Colorado is that we don’t have “custody“, we have “parenting time” and “decision making.”

When I first heard this in law school I thought it was silly.  What does the name matter?  What we’re talking about is who has the kids, isn’t it the same either way?  Turns out that it is much more than a name.   When a parent has custody in the traditional sense it is an all or nothing matter.  The parent who is awarded custody has most of the time with the child and has the right to make all of the decisions without having to consult with the other parent.  That means that a parent who looses custody really is cut out of a lot of the child’s life.  So it makes sense that the parents would fight tooth and nail to get to have custody of the kids.  Who wants to be cut out of their child’s life?

Allowing a judge to decide parenting time and decision making separately means that it is not an all or nothing battle.  Even if one parent only gets every other weekend, he or she can still be involved in making decisions for the child like where they go to school or what medical procedures to approve with the doctor.  That way even if the parent doesn’t get to see the child much they still get to be an active part of their lives.

Language also makes a huge difference.  My professor (the excellent Prof. Clarie Huntington who sadly left CU for greener pastures) said that Colorado attorneys who were around when the terminology changed reported that just changing the words had a huge effect on the parents and the courts.  They realized that the point of caring for children is sharing the responsibility between the parents.  Just using a different term made all the difference in the world.  And it’s true when you think of it.  Colorado lawyers, courts and CFIs all now refer to it as a parent enjoying parenting time, or exercising parenting time, not a parent having custody.  Having custody is a possessive word, it seems like noone else can have it if you have it.  However, if you are exercising or enjoying your parenting time, you are sharing the time with the child with the other parent.  And in most situations that is as it should be.

Remember that while you are ending your relationship with your significant other your child still sees that other person as their father or mother.  It is important that you as the parent as us as lawyers foster a good relationship with both parents.  Only then will the child grow up to be a healthy, whole person.

Disclaimer: Nothing on this page is intended as legal advice, and should not be taken as legal advice.  If you have a question you should consult with a lawyer.  Meggin is certified to practice law only in the state of Colorado.  Because of Colorado’s specific and often progressive laws this information will probably not apply to any other state.  If you live in another state you should consult with a lawyer near you.  This post does not confer any attorney client relationship, and no such relationship is formed until you and I have entered into an express contract.  If you have any questions about any information on my blog please contact me at Meggin at MRutherfordLaw.com .

How to Do Your Own Divorce

Colorado is a great state to live in.  We have fresh air, beautiful mountains, and great people.  We are also fortunate to have a great bar association and judicial system.  These two groups got together to make forms and instructions for filing your own legal case, and then they put them online for everyone.

There is only one problem.  As much as they tried the whole thing is still overwhelming.  There are so many unfamiliar words, and so many little steps to follow.  It’s hard to know if you are doing the right thing, or what it is you are supposed to file.  Some people muddle through, but years later find out that they messed something up, or didn’t address all of the issues that the judge needed to make an order about.  If you find that you want additional help, or want to make sure that everything is done right the first time, I would be happy to help you. Otherwise, I hope that this summary can guide you through the process.

There are a few cases that I believe can be done without a lawyer.  These cases are ones where (1) both people agree that they want a divorce and agree about how the property should be divided, (2) there are no children of the marriage, or (3) there is not much property to fight about.  If you have any children involved in the case or any significant property (a retirement account, real estate, etc) then you should have an attorney involved.

Since I have done many of these cases I have figured out that doing a divorce or a child custody case breaks down into four steps–(1) Initial Paperwork, (2) Financial Information, (3) Settlement Offer and (4) Final Hearing/Trial.  The following is just a brief summary of the basic steps to get a divorce or to finalize an allocation of parental responsibilities case, and more detailed information is available at The Colorado Courts Website.

Step 1: Initial Paperwork.  This is actually quite simple.  You fill out the blanks, make sure you have all the right pages, and then take it to the court and file it with the clerk.  After that, you have to have your ex served with the papers.  You can have the sheriff do it, or you can hire a company to do it.  An attorney can even tell you how to save money and have a friend do it for free.

Step 2: Financial Information.  After you turn in the initial paperwork the court will give you a case management order.  This tells you what it is that you need to do in the next 40 days.  It can be hard to understand, but an attorney can explain it all to you if you choose.  The next 40 days are all about getting together your financial information.  The court will tell you where to find the forms you need to fill out.  You will have to do the Sworn Financial Statement, the supplement to the statement if necessary, as well as send your ex a copy of a lot of information.  You want to be sure that you give your ex all of the correct information.

You also need to make sure that you attend the parenting class if there are children involved in the case.  Each county accepts different classes, so check with your county to see what class you need to take.  You may not like being forced to take  a class, but you should make sure that you pay attention.  The separation of you and your ex is probably the hardest thing the child has ever had to deal with.  Children handle hurt and confusion very differently than adults do, and it may be hard for them to cope.  This class will teach you the very basics of how to do the best thing for your children.

Step 3: Settlement Offer: It is ALWAYS better for you and your ex to agree to what will happen than to let the judge decide.  I have never had a case where either side has been happy with what the judge decided after a trial.  If you don’t have an attorney you can use the state form about the separation agreement and parenting plan.  Fill out what you want to do and then go and talk to your ex about it.  Hopefully you can come to a decision together.  Note that it is very important that you address all of the variations of parenting
time and decision making that you can think of, it will help you later.  If you can come to an agreement, just fill out the form with what you agree to and get it signed and notarized.

You should be aware, though, that the state form does not cover all of the things that may come up in the future.  I have had several clients who come to me a couple of years after they filled out the state form and realize that they didn’t talk about some very important topics.  An attorney knows what is important to include that the state form does not.

Step 4: Final Hearing/Trial.  If you have come to an agreement then your final hearing will be very easy.  You will just take the paperwork to the judge and as long as both of you agree the judge will grant your decree.  However, if you must go to trial, there are some things that you should know.
Did you know that you as a lay person are held to the same standards as a lawyer in trial?  That means that you are supposed to know all of the rules, all of the objections, and all of the procedure.  If you mess up in trial it can come back to bite you later.  Make sure that you know your rights and the procedure so that you get the best result possible.

I hope that this brief summary of the steps of getting a divorce has helped you.  While doing a divorce yourself is difficult, it is doable.  If you find yourself overwhelmed please contact me.  I love helping people like understand the legal system and get the best outcome possible.

Disclaimer: Nothing on this page is intended as legal advice, and should not be taken as legal advice.  If you have a question you should consult with a lawyer.  Meggin is certified to practice law only in the state of Colorado.  Because of Colorado’s specific and often progressive laws this information will probably not apply to any other state.  If you live in another state you should consult with a lawyer near you.  This post does not confer any attorney client relationship, and no such relationship is formed until you and I have entered into an express contract.  If you have any questions about any information on my blog please contact me at Meggin at MRutherfordLaw.com .