A divorce in Colorado can be reopened within five years of the decree entering, provided that there was a material misrepresentation of assets or there was some sort of fraud. The statute is 16.2 e10 and it gives a five year period of looking back at material information that was withheld intentionally, or unintentionally. If you find that information within five years of the decree entering, you can go back to court, reopen it, and have a reallocation of assets, debts, and sometimes financial obligations.
Can a divorce settlement be reopened in Colorado?
While you may have no regrets about getting divorced, you could have issues with the terms of your divorce settlement. Perhaps you feel that its terms are unfair. Maybe you discover that your spouse has been concealing assets to prevent them from being fairly divided. A more common concern is that your financial circumstances have changed or the needs of your growing children are no longer adequately met under the current settlement terms.
Divorce settlements are intended to resolve all current and reasonably anticipated issues arising from a marriage dissolution. However, the state of Colorado recognizes that some elements, like child custody and support and spousal maintenance, are based on your situation at the time of divorce and may eventually be insufficient. You can therefore petition the court to make appropriate modifications.
What are the grounds for modifying a Colorado divorce settlement?
The general rule is that you or your spouse must have experienced a significant and ongoing change of circumstances since the divorce decree was issued. Unlike some states, Colorado does not have set guidelines on what constitutes an acceptable degree of change, but commonly accepted examples include:
- A substantial change in the income of either party
- The children have gotten older, resulting in an increase in living and education expenses
- The custodial parent wants to relocate
- The custodial parent has become unfit
- A spouse receiving spousal maintenance has gotten a full-time job
What modifications are possible?
Below is an overview of the divorce settlement modifications you may be able to seek under the appropriate circumstances.
CHILD CUSTODY MODIFICATION
In general, Colorado courts only permit changes in child custody orders every two years. If you obtain a modification, you need to wait until two years have passed before seeking another. There are two exceptions to this general rule:
- You want to change the child’s primary residence. For example, you are the custodial parent and you want to move out of state to accept a job opportunity.
- The child’s physical, mental, or emotional welfare are at risk. For example, your former spouse, who has primary parental responsibility (custody), has developed a substance abuse problem or married someone who abuses or neglects the children.
CHILD SUPPORT MODIFICATIONS
When you or your spouse experience a significant change in your financial circumstances, making it impossible to meet your ordered child support obligations, you will probably need to obtain a court-ordered modification of the support payment amount.
CRS 14-10-122(1)(b) states that a 10% change in the amount of support due is sufficient to warrant a modification, but the change has to be an ongoing one. If you are laid off but find a new job within a few months, it won’t qualify. On the other hand, if you are a member of the U.S. military and earn additional income while deployed for a year, the court is more likely to order a modification.
It is important to note that this 10% change applied to the support due, not your income. A Colorado support modification attorney will help you determine whether your changed financial circumstances have enough of an impact on the support due to warrant a modification.
SPOUSAL MAINTENANCE MODIFICATIONS
The goal of spousal maintenance is to allow a financially disadvantaged spouse (like a stay-at-home parent) to maintain the lifestyle they enjoyed while married. A maintenance award may be modified on the basis of changed circumstances, such as:
- A sudden increase or decrease in income. For example, the paying spouse becomes disabled and cannot work or the recipient spouse finds a full-time job.
- The receiving spouse is now living with someone else in a relationship equal to a common-law marriage and their living expenses have been substantially reduced.
PROPERTY SETTLEMENT MODIFICATIONS
In Colorado, if you feel that your property settlement was grossly unfair, you have up to six months after the decree was issued to seek a modification. However, the settlement can be reopened after the six-month deadline if fraud was involved in the original proceeding. This can happen if your spouse concealed marital assets at the time.
Remember: always go through the court
It can be tempting to bypass the court and make informal changes to your divorce settlement. Resist the urge to choose convenience over what the law requires. In other words, don’t suddenly pay less child support solely because your former spouse agrees to such an arrangement: not only is it not legally binding, but you could be on the hook for arrears later. Similarly, don’t prevent your ex from seeing the children because they aren’t paying support or keep returning the kids later than agreed. Whenever any aspect of your divorce settlement needs to be modified, always go through the court system.
Contact a Colorado divorce attorney
At Burnham Law, we can help you modify the terms of your divorce settlement so that it reflects your current circumstances and the needs of your children. We know how to prepare and present an argument for a divorce modification that is fair to all sides and therefore likely to be granted by the court. For more information or to schedule a confidential consultation, please call (303) 625-9193 or fill out a contact form.