You can file for divorce, obviously, if you’re married. That’s the first requisite is that you’re married. In Colorado we are a little unique in that Colorado does recognize common law marriages, not every state does so. There might be a situation where you never went through a formal marriage ceremony, or you never went and got a marriage license, but you held yourself out to the public as being married. So, you may be in a common law relationship. If you are, it’s going to be important that you file for divorce, because if you’re not filing for divorce, you may have left some avenues open. For example, if you are filing income tax returns with your presumptive spouse together as married, then you have to consider whether you really are married and you might need to go and file for a divorce.
Another aspect that you have to consider is: Are you domiciled here in Colorado? In other words, is Colorado your residence? Have you been a resident of Colorado for more than 91 days? That’s a statutory requirement that you must meet in order to file for divorce in Colorado. Those are the major reasons. Then you have to ask yourself whether your marriage is irretrievably broken and, if that’s the case, then you need to proceed to file for dissolution of marriage. You do have the opt to file for legal separation. Most people don’t do that anymore because the reality is that a decree of legal separation can be converted to a decree of dissolution of marriage within 6 months of being final and you have to do the same amount of paperwork. Sometimes, for religious reasons, you would rather do a petition for legal separation. It used to be that there were health insurance reasons why you might not want to be divorced. We’re not seeing as many of those now.
The other reason you would want to file for divorce here in Colorado is to define your rights. In Colorado, the assets are valued as of the time of the permanent orders hearing. I’ve seen situations where parties were separated for many years and they continued to work and accumulate money in their retirement account, for example, not realizing that their assets that they’ve accumulated after they were separated may still be subject for division. If you are separated from your spouse you need to think: do I need to go ahead and get this divorce filed because am I accumulating assets that need to be divided and I’m still working and contributing money to retirement accounts, accumulating assets, accumulating debt? The courts going to value my marital estate at the time of the permanent orders hearing. You may be opening yourself up to issue down the road if you don’t go ahead and file.