Are Same-Sex Divorces Handled the Same As Heterosexual Divorces?

With tides having turned in the struggle for LGBTQ+ marriage rights over the last decade, often questions about whether there are any differences when it comes to marriage for same-sex couples arise. Are these marriages the same as heterosexual marriages? And what about the divorces?

How is same-sex divorce different from a divorce between a heterosexual couple?

Because same-sex marriage is legal in Colorado there is virtually no difference between same-sex divorce and heterosexual divorce. This means that you can either be a petitioner and respondent or petitioner and co-petitioner. After that, the divorce will proceed as a heterosexual divorce would.

How will child support and custody factor into a same-sex divorce?

Because many same-sex couples have children, this is a question that is often at the forefront of the couples’ minds. However, the court will proceed as they would for any divorce. Regardless of whether or not the child is biologically yours, or adopted by one or both parents, the court will determine parenting time based on the best interests of the child. If both parents are adoptive parents, they are both treated as if they are legal parents to the children. This is the same if one party is the biological parent and one party is an adoptive parent.

Additionally, child support will be calculated using the same calculation as in any other child support situation. If you’re curious what child support might look like in your particular set of circumstances, check out our calculator.

If you are interested in common law marriage divorce or divorce for LGBTQIA+ couples, you can learn more here. You can also find more materials discussing same-sex marriage on our website.

Do I Need to File for Divorce to Get Child Support?

Child Custody and Child Support can be an incredibly complicated process. Because of this, a lot of questions can arise from anyone actively going through the process or beginning the process. One of these questions, which this blog will go over, is “Do I need to file for divorce to get child support?” The short answer to that question is that, if you are married, you will most likely need to file for divorce to get child support or determine any child custody matters. However, it does depend on each individual situation and the State will sometimes seek child support on a parent’s behalf.

As mentioned above, if you are married, child custody matters do tend to be wrapped up in the divorce proceedings. This means that once you file the Petition for Dissolution of Marriage, to begin your divorce process, then the child custody process will begin as well. This process includes everything having to do with your children, including child support.

If you are not married, then your child custody process will look slightly different. This process will not begin with the Petition for the Dissolution of Marriage. Rather, you will file a Petition for Allocation of Parental responsibilities to kick start the custody determination process. This process will also include the calculation of child custody.

As always, the best way to begin the child custody process is to hire an attorney. An attorney knows the child custody process, whether you are married or not, intimately and will be able to guide you through all the paperwork necessary to be collected and filed. Here at Divorce Matters, we also schedule an initial consultation, which will allow you to ask any general questions you may have about the process before you hire your attorney. To schedule an initial consultation, call us at (720) 542-6142 or you can send us a message through our website.

How is Child Support Determined Based on Income?

What goes in to the court’s decision?

There are a lot of factors going in to the determination of child support. The most important factors are childcare expenses, monthly income, and the number of overnights your child will spend with you. Your monthly income is just the total amount of money you will bring in in a month, before any taxes or deductions. If you do receive spousal maintenance, that amount will be factored in to your monthly income. Childcare expenses include medical, childcare, medical insurance, school, and extra-curricular costs.

How is child support calculated?

Based on all of these factors, the court will calculate how much it costs to take care of the child and how much time the child spends with each parent. The time spent with each parent is calculated by counting the number of overnight visits. After determining how much time is spent with each parent, the court will use it own formula to determine how much you (or your ex-partner) will owe in child support. It is important to note that child support is often paid to the primary custodian of the child, but this is not always the case. If you would like to determine how much you might pay in child support (or spousal maintenance) you can refer to Divorce Matters’ Child Support Calculator! This app, developed by Divorce Matters, takes all of the information the courts in Colorado would use to decide a child support amount and calculate a probable amount you might pay. To learn more, visit here. 

What happens if my income changes?

Generally, your income will need to have a 10% difference, either positively or negatively, to affect the child support amount. If you lose your job, get laid off, or even get a raise, these are all factors that may change the amount of child support you either pay or receive. To change that amount, you would need to file a Motion to Modify Child Support Order. A judge will then decide what your new amount should be.

If you have questions about your child support arrangement please reach out to our firm to speak with one of our attorneys. You can fill out a form here, or call us at 720-542-6142.

What if I Believe My Spouse is Unfit to Take Care of Our Children?

If you believe that your spouse (or former spouse) is unfit to care for your children, there are a few possible routes to take. The route that you take will depend on the urgency and severity of the situation. If the situation does not require immediate attention, you can file a “Motion for Modification of Parenting Time”. If the situation is more urgent and needs to be remedied immediately, you can file a “Motion to Restrict Parenting Time” or you can call Child Protective Services (CPS). You can learn more about each of these options below.

Motion for Modification of Parenting Time

There are a few different routes to take depending on the severity of the situation. If your concerns do not require immediate attention, you can file a “Motion for Modification of Parenting Time” as discussed above. This motion may be filed every two years or as often as necessary, as long as you can prove that circumstances have changed. The change in circumstances could be a variety of things, including, but not limited to, moving, use of drugs or illegal substances, or the creation of an unsafe situation for children. In proving this change of circumstances, it may be helpful to hire a third-party investigator, called a Child and Family Investigator or Parental Responsibilities Evaluator. To be clear, this is not an immediate solution and will take a minimum of 3 months to complete. Following a minimum of 3 months, the court may deny the modification and elect to keep the parenting plan consistent or modify the plan in line with the requested modification or in any way the court sees fit to modify the parenting time agreement.

Motion to Restrict Parenting Time

If your situation is more urgent, there are two roads that will lead to a quicker resolution from the court. One of these options is to file a “Motion to Restrict Parenting Time”. This motion must include the reasons that you believe the children will be endangered, either physically or emotionally, by remaining in the care of the opposing parent. The court is required to set a hearing date within 14 days of filing this motion, making it significantly quicker than filing a “Motion for Modification of Parenting Time”. When the date of the hearing comes around, you should make sure to bring any evidence you have that your children are not safe with the opposing parent. It is important that this evidence is not just what your children have told you, as this can be considered “hearsay” and may not be admissible evidence. If the court finds that you are correct and the other parent is physically or emotionally endangering the child, there may be steps or restrictions put into place that the opposing parent must go through if they want to regain any parenting time. For example, if the opposing parent has been using drugs, the court may order a rehabilitation program before they are allowed to regain any parenting time. The court can also restrict or reduce the opposing parent’s parenting time. It is important to remember that this is a very serious claim and should not be filed without base. If this motion is found to be baseless or vengeful, the court may require you to pay the opposing parent’s attorney fees.

Child Protective Services

The second option for a more urgent case is contacting Child Protective Services (CPS). CPS is a government agency that investigates claims of child abuse or neglect. This is the most serious action and will result in the most immediate response. Before getting more into this process, it is important to note that calling CPS on the opposing parent will also invite CPS to investigate you. The organization is meant to make decisions in the best interest of the child and they cannot do this without investigating every aspect of your children’s lives.  This investigation will include interviewing both parents, various witnesses, and the children themselves. CPS will generally make findings of the best situation for the children without initiating action through the court. In more severe cases, however, CPS will initiate action through the courts called a “Dependency and Neglect Action”. This may result in the child being removed from the unsafe environment, supervised visitation, reintegration therapy, substance abuse monitoring, or any action that the court feels is appropriate to the situation.

Can My Citizenship Status Affect My Divorce?

Divorce can be a difficult process on its own, but when you have citizenship concerns it can become even more daunting. However, if you arm yourself with knowledge about your situation you can properly prepare yourself for what to expect.

Is there any difference in the divorce proceedings or parental rights hearings if I am not a U.S. citizen or if I have recently become a U.S. citizen?

The short answer is no! The proceedings should continue exactly as they would if there were no citizenship concerns. If you have recently become a citizen, there are no concerns as to the status of your citizenship, because your citizen status cannot be taken away due to your divorce.

Will divorce affect my green card status?

This question has a more complicated answer than the first! To understand how divorce might affect your citizenship status, you first have to understand how the citizenship process works. To become a citizen, you must have a green card. In order to get that green card, through marriage, immigration officials must confirm that your marriage is a “bona fide” marriage. This just means it cannot be a marriage for citizenship. After you get your green card, you have to retain it for a certain amount of time, usually 5 years, to gain your citizenship. However, this time shortens from 5 years to 3 years if you are married to a U.S. citizen. If you do file for divorce before the 3 years is up, you will not have your green card revoked, however you will have to wait the 5-year waiting period for citizenship, as opposed to the 3-year waiting period when you are married to a U.S. citizen. This also holds true if you have been married longer than 3 years, but less than 5 years, and have not yet filed for citizenship. If you have already had your green card for 5 years before you file for divorce, however, the divorce will have no bearing on when or if you can file for citizenship.

If the divorce is contentious and your ex-spouse claims that the marriage was not bona fide, the case can become a little bit more difficult. If you already have citizenship, this will not affect your citizenship. If you still have your green card, you will just have to prove that the marriage is or was bona fide, either by what immigration officials have already proven or by your own evidence, to continue in the citizenship process.

What if I am undocumented? Can I still get a divorce?

If you are undocumented, you can still get a divorce and proceedings will continue as they would for any other divorce case. It is important to note, though, that anything you say in divorce court can also be used against you in immigration court. Because of that, if you are undocumented, it is wise to retain an immigration attorney as well as a divorce attorney in the case that you do want to file for divorce. Being undocumented could also make parenting agreements difficult, especially if you are deported or leave the United States. Again, in this case it is important to retain an immigration attorney, as well as a divorce attorney, to protect your parental rights.

Will I be Affected by Changes to the 2021 Child Tax Credit?

Recently it was announced that under the American Rescue Plan Act the expanded Child Tax Credit would be distributed differently in 2021. This year, half of the tax credit will be distributed on a monthly basis beginning in July and the other half will arrive with your 2021 tax refund. While this tax credit is a welcomed relief for many families who are struggling to make ends meet, it also spells confusion for most folks who are going through or already divorced.

How will this tax credit be distributed if I am divorced?

The Child Tax Credit can only be claimed on one tax return, so if you are divorced or filing separately this means that only one parent will be able to claim the tax credit. A court order or separation agreement will name the person eligible to claim the tax credit, this is typical whichever parent has primary custody. There are several ways a 50/50 custody arrangement might address this, for example, some may choose to file with the tax credit every other year.

Can the courts rule that this year’s tax credit be split?

In most cases, the courts will follow whatever was agreed upon in your separation agreement or court order. However, this is not the end of the line if you wish to treat this year’s tax credit differently. For example, if your ex claims the tax credit every year but you are able to come to an agreement with them that you will file for the tax credit this year, you can file an IRS Form 8332. This form is a right of tax benefit transfer, which would allow you to claim for this year. Please be aware that it is important you check with your attorney first before moving forward with anything that deviates from your separation agreement. We also suggest seeking out a tax professional for help with filing your taxes.

Can the tax credit payments be garnished for child support if I am behind on my payments?

Per the American Rescue Plan Act, this tax credit is not subject to garnishment meaning you will receive the full amount from the government. However, this does not protect that payment from garnishment or levy once the money is in your bank account. Another consideration is that while it won’t be garnished when distributed when you file your taxes at the end of the year it may be subject to offset.

What do I do if the tax credit was claimed by my ex, but I was supposed to claim it this year?

The best way to handle this is to get in touch with your attorney. They will be able to help you chart the best course of action, whether that be reaching out to negotiate with your ex and coming to an amicable resolution, or filing a motion of contempt with the courts.

If you have questions, please reach out to one of our experienced attorneys today.

This Is How The Divorce Process Works and How Long It Will Take

When it comes to divorce most would say they want the process to be over as soon as possible so they can move on with their lives. This inevitably leads everyone to ask “how long will it be until I am officially divorced from my spouse?” A great place to start is our Divorce Timeline, which can be found under the Tools tab on our website. However, we also want to give a more general overview of how long the process might take. The specific circumstances and complexity of your case will determine the timeline, but overall, this is what you can expect the process to look like.

 

When You First File-

 

Once you have filed a Petition for Dissolution of Marriage with the courts in your county, your spouse must be personally served.  Learn more about what to do if you are the one being served divorce papers.

Once your spouse is served, he or she has 21 days (35 for out of state) to file a response. If you and your spouse both want the divorce and sign a petition jointly, the Service/Response step can be ignored. Your spouse may also agree to waive service if you do not file jointly. Just because you sign jointly does not mean the process is complete, and you will still need to follow the rest of the requirements in the process.

 

Once Your Ex Is Served-

 

You have 42 days after the date of filing to set up an initial status conference with the court and submit your financial disclosures. The initial status conference is your first court appearance and is an informal way for both parties and the Court to get on the same page about dates and deadlines in your case. It depends on the county and jurisdiction that you are in as to whether they will schedule a time for your initial status conference automatically once you file, or if you or your attorney have to reach out to the court to schedule your own. The timing for this solely depends on your county’s court and its timeline. You also will need to have your financial disclosures submitted within that 42-day deadline as well.

 

After Initial Status Conference-

 

You have the option to file for Temporary Orders, which is only necessary if there is an immediate conflict that must be addressed while your case is ongoing. Temporary Orders can help with decision making, child support or spousal support, or who will live in the marital residence during the divorce process. Temporary orders will be replaced by permanent orders at the end of your case. A temporary orders hearing, which is a separate court date, must be set to decide this and it will extend your case.

 

Once you’ve had your initial status conference, you and your spouse are then required to attend mediation by the state of Colorado. Everyone who files for divorce in Colorado must attend mediation, with a few exceptions. In rare cases where the parties agree to every issue, it is possible to skip mediation, which would shorten your case. Additionally, you may request mediation be waived in cases of domestic violence.

 

Mediation-

 

Mediation is a formal settlement conference where the mediator (whom you hire) assists in trying to reach a full agreement between you and your ex. If mediation is successful, you will leave with a signed or partial settlement agreement. Then your attorneys draft the final agreements and file the documents with the court.

 

If mediation is not successful, you must either come up with a settlement or prepare to go to trial. If you need to go to trial, this must be scheduled with the court and the timing completely depends on their availability and timeline. This can extend your case; therefore, it is ideal to come up with agreements in mediation or a settlement.

 

Finalized-

 

Your divorce will be finalized once a judge issues a decree of dissolution of marriage which then severs the marriage, and you are no longer married.

 

Post-decree-

 

If a party is not satisfied with the final decision made by the court, then an appeal can be made. There are specific time constraints around appeals, so you will want to speak with your attorney if you wish to appeal any part of your divorce decree.

 

You also may modify certain orders put in place by the courts if circumstances change after the final agreement has been made. Again, you will want to speak with your attorney if you would like to modify any documents or orders post-divorce.

 

Overall, it can be difficult to determine the exact length that it will take to finalize your divorce because every situation is different. Your timeline will depend on the specific circumstances and jurisdiction of your case.

If you have questions about your particular situation or would like to speak with an attorney today, contact us.

If I’ve Lost My Job Due To The CoronaVirus, Can I Get My Maintenance or Child Support Payments Reduced or Changed?

Have you experienced an interruption to your job due to the coronavirus such as a reduction in hours or loss of job? Can you get your maintenance or child support payments reduced or changed if this is the case and how quickly?

The coronavirus is pushing the country into uncharted waters, jeopardizing nearly half of American jobs. If your work has been impacted by the coronavirus, you may wish to modify the amount of maintenance you are paying your ex-spouse. The first step in tackling this question is to determine whether you can modify maintenance in the first place.

If you and your ex-spouse were able to agree to maintenance as a part of a larger separation agreement, you may have agreed that maintenance is modifiable, or non-modifiable. If the separation agreement states that maintenance is modifiable, then keep reading.

Adversely, if the separation agreement expressly states that maintenance is non-modifiable, then you are unable to request a modification, period. You must pay your maintenance pursuant to the terms of the separation agreement, regardless of changing circumstances.

If maintenance was awarded by the judge at your permanent orders hearing, then it is always subject to modification. This is mandated by Colorado Statutes, which states: “Except upon written agreement of the parties, an award of maintenance entered pursuant to this section may be modified or terminated pursuant to the provisions of section 14-10-122.” §14-10-114(5)(a), C.R.S.

In order to modify maintenance, you must meet the legal requirement, which is “a showing of changed circumstances so substantial and continuing as to make the terms unfair.” §14-10-122(1)(a), C.R.S.

When dealing with child support, there is a higher bar to meet, as the change must result in at least a 10% difference in owed support. Maintenance, on the other hand, depends on whether you can prove to the court a “substantial and continuing” change in circumstances.

This is not an either-or test; you must prove that the change in circumstances (your lost job, for example) is both substantial and continuing.

What courts look for is a change in circumstances so substantial that it renders the original maintenance award unfair. A modest change to your income is not likely to be seen as substantial, no matter how permanent it may be.

Loss of employment, while immediate and substantial, is usually temporary. If you will likely be re-hired when the pandemic subsides, it is likely premature to file for a modification of maintenance or child support because you will be unable to meet the legal requirement that the change in employment circumstances is continuous, not just substantial.

If you have any questions or concerns about your maintenance or child support call us at 720-542-6142 to speak with one of our attorneys, or fill out our form here.

Because family law is an extremely personal matter we are not eliminating face-to-face meetings at this time. However, we do have virtual and telephonic meetings available and strongly encourage them for anyone who wishes to conduct their consultation via telephone or computer in accordance with social distancing protocols.

So Your Ex Is Not Paying Child Support”¦

Getting a divorce can feel a little like running a marathon. Once you reach the end, you might collapse in a heap and tell yourself, “Never again.”

Unfortunately, in many situations, the real trouble has only just begun. Now, you need to spend one or two decades co-parenting with your ex, which often involves one parent paying child support to the other based on a monthly schedule.

But what happens when the other parent refuses to pay? You can ask them to pay, but they might avoid your phone calls. In this situation, you might need to seek enforcement from the judge, called contempt of court.

What is Contempt of Court?

When you received your divorce decree, the judge entered certain orders. These are not optional recommendations to each party but judicial commands to do something. If you or your ex decides not to follow the order, then a judge can find you in contempt.

Your ex might flout the judge’s ruling in all kinds of situation, such as paying child support or alimony or refusing to transfer title of an asset that is now yours thanks to the division of property.

What are the Punishments for Contempt of Court?

Judges have the discretion to bring the party in contempt back into compliance. Sometimes, a stern warning is enough. In other situations, a judge might order the person in contempt to pay money until they start following the orders or even send the person to jail. Usually, it never gets that far””but it could.

A judge might also revisit orders. For example, the judge could award more custody to a parent if his ex decides to disobey the judge’s orders. To determine what is the best remedy, you should consult with your Denver family law attorney.

How Do I Request a Contempt Citation?

You must complete forms and submit them to the court for consideration. It is probably best to have your attorney pursue contempt for you. Making a frivolous request could hurt you more than it would help, so let a lawyer analyze whether requesting a contempt citation is in your best interests.

Divorce Matters Can Help

Obtaining a divorce is only half the battle. If you are struggling to get your ex to follow the terms of your divorce, then you might need to file for a contempt citation. Contact Divorce Matters today. Our Denver contempt of court divorce lawyers have helped countless people over the past years.

Contact us today by calling 720-580-6745 or sending us a message.

If I Get a Raise, Will My Child Support Increase?

Life happens, and because of this, a child support order is not permanent. Sometimes a parent may find themselves in a new job where they are earning more or they may receive a significant raise at work. On the other hand, sometimes circumstances go the other way, and a parent may find they’ve lost their job. Whatever your circumstances are, if you have a child support order in place there is definitely a chance that at some point it will need to be modified.

To modify a child support order, there has to be at least a 10% difference in the existing child support order and there is no mechanism in place that automatically changes a child support order when a change in circumstance occurs. If a change needs to be reviewed, you need to file a motion to modify child support with the court.

The short answer? You may have to pay more if you receive a raise at work. However, this is not necessarily a given. The difference between the existing child support order and the potential new one has to be greater than 10%. The court also needs to receive a motion to modify child support before the order will change.

Some other situations where child support may be modified:

  • A change in child custody and visitation
  • Reduced child care costs as a child gets older
  • Emancipation of a child

If you believe you need help with a modification of child support, contact the attorneys at Divorce Matters. We also offer a free child support and maintenance calculator app if you need help determining potential changes, our app can be found in both the Google Play and iOS stores, click here to learn more.