When a divorce proceeding begins, people often wonder how their or their spouse’s past behaviors may impact their case. In a divorce, the court is charged with resolving issues regarding the parties’ finances (division of marital assets, division of marital debts, allocation of attorney’s fees and spousal support), and, if the parties have children, the sharing of parenting time and decision-making.
Colorado is a “no fault” state, meaning that neither party has to prove any kind of fault in order to obtain a divorce. While in general, a person’s “bad” behavior should not impact the outcome of a divorce, there are some exceptions. The question of whether or how a person’s behavior may impact the outcome of a divorce is fact-specific and can be complex, requiring a sophisticated understanding of Colorado law. If you believe that your or your spouse’s behavior may be relevant to your case, you should consult with a seasoned family law attorney to help you identify your best options moving forward.
Division of Assets:
Courts can consider marital waste, also known as economic fault, in the division of the parties’ assets. In re Marriage of Huntis the landmark case that discusses the concept of economic fault and its impact on the division of marital estates. Pursuant to Hunt, the concept of economic fault only applies in “extreme” circumstances, “such as the spouse’s dissipation of marital assets in the contemplation of divorce.”
In the event that a Court does find that one party has engaged in behavior amounting to economic fault, the result may be a disproportionate division of the marital estate. The standard for the division of marital property is an “equitable” division of property. Equitable division essentially amounts to a division that is fair, considering the circumstances of the parties. This includes the consideration of any economic fault.
The Court may also consider the contribution of each party to the marital estate and/or accumulation of debt. This is different from considering whether someone’s behavior amounted to economic fault or marital waste. When the court does account for each party’s contribution, the court should not going to hold it against a party who earned less or spent more over the course of the marriage, although it may impact the equitable division of the estate.
Parenting Time and Decision-Making:
The Court applies the “best interest” standard to determine how parenting time and decision-making responsibility should be allocated between parents. The Court had broad discretion when it comes to determining how parenting responsibilities should be allocated, and a parent’s behavior can be particularly relevant when the Court makes this decision. Among the factors that the Court must consider, Colorado law expressly identifies the following factors:
- The wishes of the child’s parents as to parenting time;
- The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;
- The interaction and interrelationship of the child with his or her parents, siblings, and any other person who may impact the child’s best interests;
- The Child’s adjustment to his or her home, school, and community;
- The mental and physical health of all individuals involved;
- The ability of the parties to encourage a relationship between the child and the other parent;
- Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
- The physical proximity of the parties to each other;
- The ability of each party to place the needs of the child ahead of his or her own needs.
It is important to note that, if there is a history of domestic violence in your case, this can be relevant when a court is determining whether parents should share joint decision-making and how parenting time should be divided between parties. That said, the court’s primary concern is how or if domestic violence may impact a party’s ability to appropriately parent the minor child or children.
Whether you are in the initial stages of contemplating a divorce or the process has already begun, at GEM Family Law, our seasoned family law attorneys can help you navigate the complexities of the divorce process and how you and your spouse’s past conduct may affect your case.
Authored by: Ashley G. Emerson, Esq.