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Divorce FAQ's
Q. How do I know I am getting a fair settlement?
A. Colorado is an equitable distribution state. This means the settlements are meant to be fair, however, not necessarily 50/50. Settlements may be comprised of asset distribution, maintenance, child support and debt assignment. All these
components may be divided in a way that seems best suited to both spouses, but
perhaps not equally. A financial expert may be necessary to assist you in obtaining the most optimal settlement.
Q. Do I need to have an attorney?
A. Approximately 65-75% of the cases filed in Colorado are pro se, meaning without legal representation. We would recommend you, in the very least, see an attorney for legal advice.
Q. Will I be able to receive alimony?
A. In Colorado it is referred to as ‘maintenance’. Although, no two cases are the same, the tests for maintenance include consideration of the following:
2) Ability to pay - Does the payer of alimony have sufficient funds to pay?
3) Length of marriage - A long-term marriage (10 years or more) is typically a stronger case for the lower-earning spouse.
4) Health of both parties
5) Reasonable needs
You need to seek individual advice in order to determine how the specifics of your case may impact your ability to receive maintenance.
Q. How do I know which assets are the best ones to keep?
A. Not all assets are created equal and some assets may have more of a beneficial effect on your financial future. Assets such as businesses and retirement accounts continue to grow. Other assets may require money for their upkeep, such as a home and automobiles, and those costs must be considered in the overall settlement. Certified Divorce Financial Analysts are experienced in assessing these situations.
Q. Will I lose my pension?
A. Pensions and retirement plans are marital assets if earned during the marriage. However, it is possible to keep your pension and have it offset with other assets.
Q. Should the custodial parent keep the house?
A. This is a great question, and it's one of the most important overlooked questions. While the answer is sometimes yes, there also may be times when the answer is no. It's important to pinpoint exactly what it will cost to maintain the home, factoring in taxes and inflation and expense of upkeep. An analysis must be performed to determine if there is enough money to stay comfortable in the home and pay all the bills without being overextended. Once that has been determined, the advisability of retaining the home must be compared to that of giving up other assets (such as liquid accounts, retirement plans, etc.). Finally, all decisions need to be weighed against current economic and stock market conditions. Certified Divorce Financial Analysts are trained to help people answer this question before they commit to a settlement that cannot be changed.
Q. What if I bring a house into the marriage that is in my name only, and I add my spouse's name to the deed?
A. In this case, the whole house could be considered marital property. You might have made a "presumptive gift" to the marriage and should consult with a family law attorney to discuss your options.
Q. Is my IRA considered marital property if it's in my name only.
A. Everything acquired during the marriage, no matter whose name it's in, is typically considered marital property. In some states, the increase in value of separate property could also be considered marital. If you are going through a divorce, it would be important to evaluate the financial drawbacks to having your IRA included in the list of assets you retain, post divorce. Remember, the funds in the IRA cannot be accessed before age 59 1/2 without paying a 10% penalty for early withdrawal. Note: Inheritances and gifts may be considered to be separate property.
Q. I have never worked. Can I get Social Security?
A. If your spouse has worked and if you have been married for 10 years or more, than you are entitled to one-half of your spouse's Social Security or your own, whichever is higher--even if you are divorced. Your spouse still retains 100% of his/her Social Security benefit. This is an automatic guarantee and therefore it is not a negotiation point in a divorce.
Q. How do we figure how much child support should be paid?
A. Colorado has Child Support Guidelines that are mandated by the State. However, the Guidelines get tricky when one (or both) spouses is an independent business owner who can control their wages. In this situation, it typically helps to bring in a financial or tax expert who can help determine the true potential income of the each spouse.
Q. Do we have to go to court?
A. Only if you can't reach an agreement. Then, a court date is set and a judge hears the case. Less than 2% of all divorce cases go to trial in the United States.
Q. What is a QDRO and why do I need one?
A. A QDRO (or Qualified Domestic Relations Order) is the legal document that divides up a qualified pension or retirement account (including 401k's) pursuant to a divorce. The Judgment of Divorce is not sufficient to divide up the qualified plans; a QDRO is needed, preferably before the divorce is final. There are many nuances that go into QDRO's and make it an advocating (versus neutral) document. In order to protect your assets, be sure to obtain qualified advice in this area from a specialist.
Q. When do I need to see a CDFA?
A. At the point when you’re considering getting a divorce is the time to see a Certified Divorce Financial Analyst. Waiting too far down the road may limit your options and may result in less desirable outcomes.