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Office of Sen.

Mike Johnston
Colorado General Assembly | 200 E. Colfax Avenue | Denver, CO 80203 | 303.866.4864

FACT SHEET MEMORANDUM


HB 12-1233 Legal Separation Court Appearance Procedure Sen. Carroll & Rep. Labuda Staff Name: Kayla Smith What the Bill Does: Under Colorado law, married couples that wish to legally separate have two options. They may choose to proceed with a traditional divorce, which is called dissolution of marriage. Alternatively they may choose to file a decree of legal separation. A decree of legal separation is similar to a traditional divorce in some ways. In both proceedings, the parties must fully resolve all issues of child custody and support, and all issues regarding the division of property. The primary difference between the two proceedings is that couples that are legally separated remain technically married, and therefore neither party can remarry until their previous marriage is actually dissolved.1 Couples may choose to enter into a legal separation, rather than attain a traditional divorce through dissolution, for many reasons. Among the most common reasons are (1) unwillingness to divorce based on religious beliefs; and (2) legal separation may allow the parties to continue to share many benefits, such as insurance coverage, while also allowing the division of assets and separate living situations.2 Despite the different legal consequences for dissolution and legal separation, obtaining a legal separation is procedurally no less difficult than attaining a dissolution. Current law provides that legal separations require the same paper process as dissolution.3 Furthermore, a legal separation requires the parties to physically appear in court before the decree may be entered.4 In contrast, dissolution may be finalized through the use of affidavits if several conditions are met. The parties must either not have minor children or must have already finalized all child support and custody issues, both parties must be properly served, and an agreement for the division of marital property must have been reached.5 HB 12-1233 seeks to lessen the procedural requirements for attaining a legal separation by eliminating the requirement that parties physically appear in court, and instead allowing parties to submit affidavits, when the parties meet the same requirements as for dissolution by affidavit. Accordingly, the bill would make the legal separation process to consistent with the current dissolution process.

Frank McGuane & Kathleen Hogan, 19 Colo. Pract. Series, Family Law and Practice 7:4, Distinction from Dissolution Proceeding, 2011. 2 Id. 3 Frank McGuane & Brenda Storey, 3 Colo. Prac., Methods of Practice 95.7 (5th ed.), Legal Separation, 2011. 4 See C.R.S. 14-10-120.3; Frank McGuane & Kathleen Hogan, 19 Colo. Prac., Family Law & Practice 7:7, Judgment of Legal Separation, 2011. 5 Id.

DRAFT 2/26/2012 9:26 PM

For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.

Colorado Context: In fiscal year 2011, 958 legal separation cases were filed in Colorado. This number constitutes about 3% of the total number of domestic relations cases filed.6 In the same year, 26,623 dissolution of marriage cases were filed, which made up about 74% of domestic relations cases.7 National Context: Colorado is among the majority of states that offer the option of legal separation.8 Only 7 states throughout the country do not have a similar provision.9 Bill Provisions: Amends current law to provide that parties wishing to attain a legal separation may file an affidavit to finalize the procedure, instead of requiring parties to physically appear at a court proceeding Fiscal Impact: Although this bill would probably cause a small workload reduction in the courts, it is not expected to result in any significant fiscal impact.10

Colorado Judicial Branch, Domestic Relations Case Filings by Type of Case FY 2011 4 (2012), available at http://www.courts.state.co.us/Administration/Custom.cfm?Unit=annrep&Page_ID=358. 7 Id. at 3. 8 Legal Match, Marital Separation Laws (last visited Feb. 24, 2012), http://www.legalmatch.com/law-library/article/maritalseparation-laws.html. 9 See id. 10 Bill Zepernick, Fiscal Note: HB 12-1233 (Feb. 9, 2012), http://www.leg.state.co.us/clics/clics2012a/csl.nsf/fsbillcont3/996A58F6FEE53374872579890003B26F?Open&file=HB1233_00. pdf.

DRAFT 2/26/2012 9:26 PM

For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.