ADOPTION - ADULTS
ARTICLE 1 ADOPTION OF ADULTS
Section
14-1-101. Adoption of adults.
- Any person desiring to adopt an adult as heir at law shall file his petition therefor in the juvenile court of the county of his residence or the county of the residence of the person sought to be adopted, and thereupon summons shall issue the same as provided in the Colorado rules of civil procedure and be served on the person sought to be adopted. Such person shall file in the court a written answer to the petition within the time required by the summons and shall either consent to such adoption or deny or disclaim all desire to be adopted by such person.
- Upon the filing, by the person sought to be adopted, of a disclaimer of all desire to become the heir at law of the petitioner, the petition shall be dismissed by the court, but upon the filing of a consent to such adoption, whether by the person sought to be adopted or by a legally qualified conservator or other representative if such person is non compos mentis at the time, the prayer of the petition shall be granted, and a decree of adoption shall be rendered and entered by the court declaring such person the heir at law of the petitioner and entitled to inherit from the petitioner any property in all respects as if such adopted person had been the petitioner's child born in lawful wedlock, and such decree may or may not change the name of such adopted person, as the court rendering the decree may deem advisable; and such decree or a certified copy thereof may be used as primary evidence in any court establishing the status of the person so adopted.
- Any action for adoption pursuant to this section shall follow the same procedure insofar as practicable as provided in part 2 of article 5 of title 19, C.R.S., concerning the adoption of children.
Source: L. 67: p. 1055, § 1. C.R.S. 1963: § 4-2-1. L. 87: (3) amended, p. 815, § 14, effective October 1.
ANNOTATION
Law reviews. For note, "The Right of Inheritance of Adopted Children in Colorado", see 23 Rocky Mt. L. Rev. 191 (1950). For note, "Adoption and Intestacy in Colorado", see 26 Rocky Mt. L. Rev. 65 (1953). For article, "The Adoption of Children in Colorado", see 37 Dicta 100 (1960).
Annotator's note. Since § 14-1-101 is similar to repealed § 4-1-13, CRS 53, a relevant case construing that provision has been included in the annotations to this section.
The primary purpose of this section is expressed in the first sentence: "Any person desiring to adopt a person over 21 years of age as heir-at-law ....". Martin v. Cuellar, 131 Colo. 117 , 279 P.2d 843 (1955).
The name of the person adopted under this section need not be changed. Martin v. Cuellar, 131 Colo. 117 , 279 P.2d 843 (1955).
No obligation whatsoever is placed upon the person adopted with respect to the adoptive parent, and he is granted no rights whatever, other than the acquisition of an heir-at-law, who may or may not even bear his name. Martin v. Cuellar, 131 Colo. 117 , 279 P.2d 843 (1955).
This section is merely a means of giving effect to a personal transaction mutually agreeable between two adults. Martin v. Cuellar, 131 Colo. 117 , 279 P.2d 843 (1955).
No rights of the natural parents of the person adopted are taken from them, or even mentioned, where the purpose of the adoption is to acquire an adult "heir-at-law". Martin v. Cuellar, 131 Colo. 117 , 279 P.2d 843 (1955).
Certainly the rights of the natural parents of such person so adopted may not be lost in a proceeding of which they receive no notice, and there is no requirement of service of notice upon them. Martin v. Cuellar, 131 Colo. 117 , 279 P.2d 843 (1955).
The effect of an adult adoption and a child adoption are different. A person adopts an adult to make such person his or her intestate heir. Matter of Trust created by Belgard, 829 P.2d 457 (Colo. App. 1991).
This section requires the trial court to grant an adult adoption when there is valid service and the adoptee consents to such adoption. There is no additional requirement that there be a minimum age differential between the adoptor and the adoptee nor is adoption precluded based upon the prior relationship of the parties. In re P.A.L. von R., 5 P.3d 390 (Colo. App. 2000).
It does not violate public policy of state to permit a person to adopt his or her own adult sibling. In re P.A.L. von R., 5 P.3d 390 (Colo. App. 2000).
Where one over the age of 21 years is adopted as an heir-at-law by another person, such adoptive parent is without legal status to maintain action under the wrongful death statute for the death of such adopted person. Martin v. Cuellar, 131 Colo. 117 , 279 P.2d 843 (1955).
Considering the circumstances at the time the trust was executed and the settlor's reasonable expectations, the phrase "persons legally adopted" was held to include adopted children only, not adults. The court held that the respondent was using the adult adoption statute to entitle his wife to a remainder of the trust estate, contrary to the settlor's intent as set forth in the instrument. Matter of Trust created by Belgard, 829 P.2d 457 (Colo. App. 1991).
The general assembly's desire to place adopted and natural children on par with one another does not extend to permit adult adoptions for the purpose of giving them an interest in property already specifically designated. Such an adoption decree did not have the power to affect the disposition of such interests, it only granted the right to inherit through intestacy. Matter of Trust created by Belgard, 829 P.2d 457 (Colo. App. 1991).
Adult adoption proceedings in juvenile court are confidential. In re W.D.A. v. City & County of Denver, 632 P.2d 582 (Colo. 1981).
Section 19-4-104 (1) (now § 19-5-215), relating to confidentiality of records, applies to adult adoption proceedings under this section. In re W.D.A. v. City & County of Denver, 632 P.2d 582 (Colo. 1981).
MARRIAGE AND RIGHTS OF MARRIED PERSONS
ARTICLE 2 MARRIAGE AND RIGHTS OF MARRIED PERSONS
Section
PART 1 UNIFORM MARRIAGE ACT
Editor's note: This part 1 was numbered as article 1 of chapter 90, C.R.S. 1963. The provisions of this part 1 were repealed and reenacted in 1973, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this part 1 prior to 1973, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume.
Annotator's note. For legality of common-law marriages in this state, see Graham v. Graham, 130 Colo. 225 , 274 P.2d 605 (1954).
14-2-101. Short title.
This part 1 shall be known and may be cited as the "Uniform Marriage Act".
Source: L. 73: R&RE, p. 1016, § 1. C.R.S. 1963: § 90-1-1.
ANNOTATION
Law reviews. For article, "Ten Years of Domestic Relations in Colorado -- 1940-1950", see 27 Dicta 399 (1950). For article, "One Year Review of Domestic Relations", see 34 Dicta 108 (1957). For comment, "Adoptive Sibling Marriage in Colorado: Israel v. Allen", see 51 U. Colo. L. Rev. 135 (1979). For article, "Effects of Reconciliation on Separation Agreements in Colorado", see 51 U. Colo. L. Rev. 399 (1980). For article, "Cohabitation Agreements in Colorado", see 15 Colo. Law. 979 (1986). For article, "Common Law Marriage in Colorado", see 16 Colo. Law. 252 (1987). For article, "Defending Against a Common Law Marriage Claim", see 34 Colo. Law. 69 (March 2005).
14-2-102. Purposes - rules of construction.
- This part 1 shall be liberally construed and applied to promote its underlying purposes.
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Its underlying purposes are:
- To strengthen and preserve the integrity of marriage and to safeguard meaningful family relationships;
- To provide adequate procedures for the solemnization and registration of marriage.
Source: L. 73: R&RE, p. 1016, § 1. C.R.S. 1963: § 90-1-2.
ANNOTATION
Law reviews. For comment, "Adoptive Sibling Marriage in Colorado: Israel v. Allen", see 51 U. Colo. L. Rev. 135 (1979). For article, "Pre-2014 Same-Sex Common-Law Marriages: Should Federal Precedent Apply Retroactively?", see 47 Colo. Law. 42 (Dec. 2018).
There is no doubt that the public policy of Colorado favors marriage. Lewis v. Colo. Nat'l Bank, 652 P.2d 1106 (Colo. App. 1982).
But policy will not void a forfeiture-on-remarriage trust provision. A forfeiture-on-remarriage provision in a trust is not void on public policy grounds as a restraint on marriage. Lewis v. Colo. Nat'l Bank, 652 P.2d 1106 (Colo. App. 1982).
The policy of the law favoring marriage is without sufficient vigor to overcome the policy in support of effectuating a settlor's intention. Lewis v. Colo. Nat'l Bank, 652 P.2d 1106 (Colo. App. 1982).
Applied in Israel v. Allen, 195 Colo. 263 , 577 P.2d 762 (1978).
14-2-103. Uniformity of application and construction.
This part 1 shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this part 1 among those states which enact it.
Source: L. 73: R&RE, p. 1016, § 1. C.R.S. 1963: § 90-1-3.
14-2-104. Formalities.
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Except as otherwise provided in subsection (3) of this section, a marriage is valid in this state if:
- It is licensed, solemnized, and registered as provided in this part 1; and
- It is only between one man and one woman.
- Notwithstanding the provisions of section 14-2-112, any marriage contracted within or outside this state that does not satisfy paragraph (b) of subsection (1) of this section shall not be recognized as valid in this state.
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Nothing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one man and one woman:
- Entered into prior to September 1, 2006; or
- Entered into on or after September 1, 2006, that complies with section 14-2-109.5.
Source: L. 73: R&RE, p. 1016, § 1. C.R.S. 1963: § 90-1-4. L. 2000: Entire section amended, p. 1054, § 1, effective May 26. L. 2006, 1st Ex. Sess.: (3) amended, p. 9, § 1, effective July 18.
Cross references: For the validity or recognition of marriages in this state, see section 31 of article II of the state constitution; for cases construing constitutional and statutory provisions similar to section 31 of article II of the state constitution, see the editor's note under section 31 of article II.
ANNOTATION
Law reviews. For article, "Colorado Civil Union Act", see 42 Colo. Law. 91 (July 2013). For article, "Pre-2014 Same-Sex Common-Law Marriages: Should Federal Precedent Apply Retroactively?", see 47 Colo. Law. 42 (Dec. 2018).
Common law, not the provisions of the Uniform Marriage Act, governs the existence of a common law marriage. In re J.M.H., 143 P.3d 1116 (Colo. App. 2006).
14-2-105. Marriage license and marriage certificate.
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The executive director of the department of public health and environment shall prescribe the form for an application for a marriage license, which must include the following information:
- Name, sex, address, last four digits of the social security number, and date and place of birth of each party to the proposed marriage, which proof of identity and date of birth may be by a birth certificate, a driver's license, a passport, or other comparable evidence;
- If either party has previously been married, such party's married name and the date, place, and court in which the marriage was dissolved or declared invalid or the date and place of death of the former spouse;
- If either party has previously been a partner in a civil union and, if so, the name of the other partner in the civil union, or the date, place, and court in which the civil union was dissolved or declared invalid, or the date and place of death of the former partner in the civil union;
- Name and address of the parents or guardian of each party;
- Whether the parties are related to each other and, if so, their relationship, or, if the parties are currently married to each other, a statement to that effect.
- The executive director of the department of public health and environment shall prescribe the forms for the marriage license, the marriage certificate, and the consent to marriage.
Source: L. 73: R&RE, p. 1016, § 1. C.R.S. 1963: § 90-1-5. L. 93: (1)(b) and (1)(d) amended, p. 437, § 1, effective July 1. L. 94: IP(1) and (2) amended, p. 2731, § 347, effective July 1. L. 2016: IP(1) amended and (1)(b.5) added, (SB 16-150), ch. 263, p. 1080, § 2, effective June 8. L. 2019: (1)(a) amended, (HB 19-1316), ch. 380, p. 3421, § 5, effective August 2.
Cross references: For the legislative declaration contained in the 1994 act amending the introductory portion to subsection (1) and subsection (2), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration in SB 16-150, see section 1 of chapter 263, Session Laws of Colorado 2016.
14-2-106. License to marry.
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When a marriage license application has been completed and signed by both parties to a prospective marriage and at least one party has appeared before the county clerk and recorder and has paid the marriage license fee of seven dollars, a fee of twenty dollars to be transmitted by the county clerk and recorder to the state treasurer and credited by the treasurer to the Colorado domestic abuse program fund created in section 39-22-802 (1), and an additional amount established pursuant to section 25-2-121, such amount to be credited to the vital statistics records cash fund pursuant to section 25-2-121, the county clerk shall issue a license to marry and a marriage certificate form upon being furnished:
- Satisfactory proof that each party to the marriage will have attained the age of eighteen years at the time the marriage license becomes effective; or, if over the age of sixteen years but has not attained the age of eighteen years, has judicial approval, as provided in section 14-2-108; and
- Satisfactory proof that the marriage is not prohibited, as provided in section 14-2-110.
- Violation of subsection (1)(a)(I) of this section makes the marriage voidable.
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When a marriage license application has been completed and signed by both parties to a prospective marriage and at least one party has appeared before the county clerk and recorder and has paid the marriage license fee of seven dollars, a fee of twenty dollars to be transmitted by the county clerk and recorder to the state treasurer and credited by the treasurer to the Colorado domestic abuse program fund created in section 39-22-802 (1), and an additional amount established pursuant to section 25-2-121, such amount to be credited to the vital statistics records cash fund pursuant to section 25-2-121, the county clerk shall issue a license to marry and a marriage certificate form upon being furnished:
- Repealed.
Source: L. 73: R&RE, p. 1017, § 1. C.R.S. 1963: § 90-1-6. L. 75: (2)(a) amended, p. 583, § 1, effective April 10. L. 79: (2)(a), (2)(b), and (2)(d) R&RE, p. 635, § 1, effective July 1. L. 84: (1)(a)(III) amended, p. 1118, § 9, effective June 7; IP(1)(a) amended, p. 742, § 1, effective July 1. L. 86: (1)(a)(III) amended, p. 711, § 1, effective July 1; (2)(a), (2)(b), (2)(d), (2)(f), and (2)(g) amended and (2)(h) added, p. 711, § 1, effective July 1. L. 89: IP(1)(a) amended and (1)(c) added, p. 936, § 2, effective July 1. L. 93: (1)(c) amended, p. 927, § 4, effective May 28. L. 98: (1)(a)(I) amended, p. 1394, § 30, effective February 1, 1999. L. 2000: IP(1)(a) and (1)(c) amended, p. 1571, § 8, effective July 1. L. 2009: IP(1)(a) amended, (SB 09-068), ch. 264, p. 1211, § 5, effective July 1. L. 2019: Entire section amended, (HB 19-1316), ch. 380, p. 3419, § 1, effective August 2.
Editor's note: Subsection (2)(h) provided for the repeal of subsection (2), effective July 1, 1989. (See L. 86, p. 711 .)
ANNOTATION
Law reviews. For article, "Common Law Marriage in Colorado", see 16 Colo. Law. 252 (1987).
A failure to obtain the blood test (now rubella immunity documentation) does not invalidate a marriage, since § 14-2-113 provides for penalties only in the event of violation. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961) (decided under repealed § 90-1-6, CRS 53).
14-2-107. When licenses to marry issued - validity.
Licenses to marry shall be issued by the county clerk and recorder only during the hours that the office of the county clerk and recorder is open as prescribed by law and at no other time, and such licenses shall show the exact date and hour of their issue. A license shall not be valid for use outside the state of Colorado. Within the state, such licenses shall not be valid for more than thirty-five days after the date of issue. If any license to marry is not used within thirty-five days, it is void and shall be returned to the county clerk and recorder for cancellation.
Source: L. 73: R&RE, p. 1018, § 1. C.R.S. 1963: § 90-1-7. L. 75: Entire section amended, p. 583, § 2, effective April 10. L. 93: Entire section amended, p. 437, § 2, effective July 1. L. 2012: Entire section amended, (SB 12-175), ch. 208, p. 829, § 22, effective July 1.
14-2-108. Judicial approval.
- The juvenile court, as defined in section 19-1-103 (17), after a reasonable effort has been made to notify the parents or legal guardians of each underage party, may order the county clerk and recorder pursuant to subsection (2) of this section to issue a marriage license and a marriage certificate form to a party sixteen or seventeen years of age.
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- The court may order the county clerk and recorder to issue a marriage license under subsection (1) of this section only if the court finds, after reviewing the report of the guardian ad litem appointed pursuant to subsection (2)(b) of this section, that the underage party is capable of assuming the responsibilities of marriage and the marriage would serve the underage party's best interests. Pregnancy alone does not establish that the best interests of the party would be served.
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- Prior to ordering the issuance of a marriage license to an underage party, the court shall appoint a guardian ad litem for the underage party and direct the guardian ad litem to investigate the best interests of the underage party and to file a report with the court addressing the factors set forth in subsection (2)(b)(II) of this section and stating a position as to whether the issuance of a marriage license to the underage party is in the underage party's best interests.
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The court shall consider all relevant factors, including:
- The wishes of the underage party;
- The view of the parents or legal guardians of the underage party, if known;
- The ability of the underage party to assume the responsibilities of marriage;
- The circumstances surrounding the marriage; and
- The ability of the underage party to manage the underage party's financial, personal, social, educational, and nonfinancial affairs independent of the underage party's intended spouse both during the marriage or upon dissolution of the marriage.
- The district court or the juvenile court, as the case may be, shall authorize performance of a marriage by proxy upon the showing required by the provisions on solemnization, being section 14-2-109.
Source: L. 73: R&RE, p. 1018, § 1. C.R.S. 1963: § 90-1-8. L. 87: IP(1) amended, p. 815, § 15, effective October 1. L. 98: (1)(b) amended, p. 1394, § 31, effective February 1, 1999. L. 2019: (1) and (2) amended, (HB 19-1316), ch. 380, p. 3420, § 2, effective August 2.
ANNOTATION
Law reviews. For comment, "Adoptive Sibling Marriage in Colorado: Israel v. Allen", see 51 U. Colo. L. Rev. 135 (1979).
14-2-109. Solemnization and registration of marriages - proxy marriage.
- A marriage may be solemnized by a judge of a court, by a court magistrate, by a retired judge of a court, by a public official whose powers include solemnization of marriages, by the parties to the marriage, or in accordance with any mode of solemnization recognized by any religious denomination or Indian nation or tribe. Either the person solemnizing the marriage or, if no individual acting alone solemnized the marriage, a party to the marriage shall complete the marriage certificate form and forward it to the county clerk and recorder within sixty-three days after the solemnization. Any person who fails to forward the marriage certificate to the county clerk and recorder as required by this section shall be required to pay a late fee in an amount of not less than twenty dollars. An additional five-dollar late fee may be assessed for each additional day of failure to comply with the forwarding requirements of this subsection (1) up to a maximum of fifty dollars. For purposes of determining whether a late fee shall be assessed pursuant to this subsection (1), the date of forwarding shall be deemed to be the date of postmark.
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The requirements for applying for a marriage license for a proxy marriage are the following:
- One party to the proxy marriage is a resident of the state of Colorado;
- One party to the proxy marriage appears in person to apply for the marriage license and pays the fees required in section 14-2-106 (1);
- The signatures of both parties to the proxy marriage are required, and the party present shall sign the marriage license application, as prescribed in section 14-2-105 (2), and provide an absentee affidavit form, as prescribed by the state registrar, containing the notarized signature of the absent party, along with proper identification documents as specified in section 14-2-105 (1)(a) for the absent party; and
- Both parties to the proxy marriage are eighteen years of age or older.
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If a party to a marriage is unable to be present at the solemnization, the absent party may authorize in writing a third person to act as the absent party's proxy for purposes of solemnization of the marriage, if the absent party is:
- A member of the armed forces of the United States who is stationed in another country or in another state in support of combat or another military operation; or
- An individual who is a government contractor, or an employee of a government contractor, working in support of the armed forces of the United States or in support of United States military operations in another country or in another state and who supplies proper identification of that status.
- If the person solemnizing the marriage is satisfied that the absent party is unable to be present and has consented to the marriage, such person may solemnize the marriage by proxy. If such person is not satisfied, the parties may petition the district court for an order permitting the marriage to be solemnized by proxy.
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The requirements for applying for a marriage license for a proxy marriage are the following:
- Upon receipt of the marriage certificate, the county clerk and recorder shall register the marriage.
Source: L. 73: R&RE, p. 1019, § 1. C.R.S. 1963: § 90-1-9. L. 79: (1) amended, p. 637, § 1, effective May 25. L. 89: (1) amended, p. 781, § 1, effective April 4. L. 91: (1) amended, p. 359, § 19, effective April 9. L. 93: Entire section amended, p. 438, § 3, effective July 1. L. 2012: (1) amended, (SB 12-175), ch. 208, p. 829, § 23, effective July 1. L. 2015: (2) amended, (HB 15-1327), ch. 229, p. 851, § 1, effective May 27. L. 2019: (2)(a)(IV) amended, (HB 19-1316), ch. 380, p. 3421, § 3, effective August 2.
ANNOTATION
Law reviews. For article, "The Validity in Colorado of Marriages by Proxy", see 20 Dicta 283 (1943).
14-2-109.3. Rights of underage married persons.
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In addition to any rights established in law, a married person who has not attained eighteen years of age has the following rights:
- The right to establish a domicile separate from the married person's parents;
- The right to file motions and petitions with a court in the married person's name and on the married person's own behalf;
- The right to enter into enforceable contracts, including but not limited to leases for housing; and
- The right to consent to and make decisions concerning the married person's own medical care.
Source: L. 2019: Entire section added, (HB 19-1316), ch. 380, p. 3421, § 4, effective August 2.
14-2-109.5. Common law marriage - age restrictions.
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A common law marriage entered into on or after September 1, 2006, shall not be recognized as a valid marriage in this state unless, at the time the common law marriage is entered into:
- Each party is eighteen years of age or older; and
- The marriage is not prohibited, as provided in section 14-2-110.
- Notwithstanding the provisions of section 14-2-112, a common law marriage contracted within or outside this state on or after September 1, 2006, that does not satisfy the requirements specified in subsection (1) of this section shall not be recognized as valid in this state.
Source: L. 2006, 1st Ex. Sess.: Entire section added, p. 9, § 2, effective July 18.
14-2-110. Prohibited marriages.
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The following marriages are prohibited:
- A marriage entered into prior to the dissolution of an earlier marriage of one of the parties, except a currently valid marriage between the parties;
- A marriage entered into prior to the dissolution of an earlier civil union of one of the parties, except a currently valid civil union between the same two parties;
- A marriage between an ancestor and a descendant or between a brother and a sister, whether the relationship is by the half or the whole blood;
- A marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs of aboriginal cultures.
- Repealed.
Source: L. 73: R&RE, p. 1019, § 1. C.R.S. 1963: § 90-1-10. L. 78: (1)(b) amended, p. 262, § 47, effective May 23. L. 93: (1)(a) amended, p. 438, § 4, effective July 1. L. 2016: (1)(a.5) added, (SB 16-150), ch. 263, p. 1080, § 3, effective June 8. L. 2018: (2) repealed, (SB 18-095), ch. 96, p. 753, § 5, effective August 8.
Cross references: (1) For criminal penalties for the offense of bigamy, see § 18-6-201; for criminal penalties for the offense of incest, see § 18-6-301.
(2) For the legislative declaration in SB 16-150, see section 1 of chapter 263, Session Laws of Colorado 2016. For the legislative declaration in SB 18-095, see section 1 of chapter 96, Session Laws of Colorado 2018.
ANNOTATION
Law reviews. For note, "The Serbonian Bog of Miscegenation", see 21 Rocky Mt. L. Rev. 425 (1949). For article, "The Incestuous Marriage -- Relic of the Past", see 36 U. Colo. L. Rev. 473 (1964). For comment, "Adoptive Sibling Marriage in Colorado: Israel v. Allen", see 51 U. Colo. L. Rev. 135 (1979). For article, "Same Sex Marriages: Should the CBA Take a Position," see 25 Colo. Law. 7 (April 1996).
Putative spouse entitled to legal spouse's right to workmen's compensation. While it is true that a marriage entered into prior to dissolution of a previous marriage is prohibited in Colorado, an innocent party to such a marriage is not deprived of the rights conferred upon a legal spouse. As a putative spouse, upon the other person's death, she acquires the legal spouse's right to workmen's compensation. Williams v. Fireman's Fund Ins. Co., 670 P.2d 453 (Colo. App. 1983).
A common law marriage cannot be found where decedent knew that plaintiff was legally married to someone not the decedent at the time the decedent died despite anything decedent may have said regarding an intention to marry plaintiff and plaintiff's acquisition of a retroactive divorce after decedent died. The court will not speculate as to what the decedent might have intended regarding marriage had he been aware of the removal of the legal disability during his lifetime. Crandell v. Resley, 804 P.2d 272 (Colo. App. 1990).
Belief by parties that they had entered into a "religious" or "celestial" marriage does not establish putative spouse status if parties were aware that plaintiff was still legally married to someone else at the time of the "celestial" marriage. Combs v. Tibbitts, 148 P.3d 430 (Colo. App. 2006).
14-2-111. Putative spouse.
A person who has cohabited with another to whom he or she is not legally married in the good faith belief that he or she was married to that person is a putative spouse until knowledge of the fact that he or she is not legally married terminates his or her status and prevents acquisition of further rights. A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his or her status, whether or not the marriage is prohibited under section 14-2-110, declared invalid, or otherwise terminated by court action. If there is a legal spouse or other putative spouses, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice.
Source: L. 73: R&RE, p. 1019, § 1. C.R.S. 1963: § 90-1-11. L. 2018: Entire section amended, (SB 18-095), ch. 96, p. 753, § 6, effective August 8.
Cross references: For the legislative declaration in SB 18-095, see section 1 of chapter 96, Session Laws of Colorado 2018.
ANNOTATION
Knowledge that one is married to another person negates good faith belief required of putative spouse. People v. McGuire, 751 P.2d 1011 (Colo. App. 1987).
Putative spouse entitled to legal spouse's right to workmen's compensation. While it is true that a marriage entered into prior to dissolution of a previous marriage is prohibited in Colorado, an innocent party to such a marriage is not deprived of the rights conferred upon a legal spouse. As a putative spouse, upon the other person's death, she acquires the legal spouse's right to workmen's compensation. Williams v. Fireman's Fund Ins. Co., 670 P.2d 453 (Colo. App. 1983).
A common law marriage cannot be found where decedent knew that plaintiff was legally married to someone not the decedent at the time the decedent died despite anything decedent may have said regarding an intention to marry plaintiff and plaintiff's acquisition of a retroactive divorce after decedent died. The court will not speculate as to what the decedent might have intended regarding marriage had he been aware of the removal of the legal disability during his lifetime. Crandell v. Resley, 804 P.2d 272 (Colo. App. 1990).
Belief by parties that they had entered into a "religious" or "celestial" marriage does not establish putative spouse status if parties were aware that plaintiff was still legally married to someone else at the time of the "celestial" marriage. Combs v. Tibbitts, 148 P.3d 430 (Colo. App. 2006).
14-2-112. Application.
All marriages contracted within this state prior to January 1, 1974, or outside this state that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties are valid in this state.
Source: L. 73: R&RE, p. 1020, § 1. C.R.S. 1963: § 90-1-12.
ANNOTATION
Law reviews. For note, "Some Marriages in Colorado Governed by Customs of Mexico", see 1 Rocky Mt. L. Rev. 151 (1929). For note, "Jurisdiction to Annul a Marriage Celebrated Without the Forum", see 26 Rocky Mt. L. Rev. 57 (1953).
A marriage contracted in another jurisdiction, and valid under its laws, is valid in Colorado. Payne v. Payne, 121 Colo. 212 , 214 P.2d 495 (1950); Spencer v. People in Interest of Spencer, 133 Colo. 196 , 292 P.2d 971 (1956) (decided under repealed § 90-1-5, CRS 53 and CSA, C. 107, § 4).
14-2-113. Violation - penalty.
Except as provided in section 14-2-109 (1), any person who knowingly violates any provision of this part 1 is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars.
Source: L. 73: R&RE, p. 1020, § 1. C.R.S. 1963: § 90-1-13.
PART 2 RIGHTS OF MARRIED PERSONS
Cross references: For the legislative declaration in SB 18-090, see section 1 of chapter 72, Session Laws of Colorado 2018.
14-2-201. Property ownership.
The property, real and personal, that a person in this state owns at the time of his or her marriage, and the rents, issues, profits, and proceeds thereof, and any real, personal, or mixed property that comes to him or her by descent, devise, or bequest, or the gift of any person except his or her husband or wife, including presents or gifts from his or her husband or wife, such as jewelry, silver, tableware, watches, money, and apparel, remains his or her sole and separate property, notwithstanding his or her marriage, and is not subject to the disposal of his or her husband or wife or liable for his or her debts.
Source: R.S. p. 454, § 1. G.L. § 1747. G.S. § 2266. R.S. 08: § 4181. C.L. § 5576. CSA: C. 108, § 1. CRS 53: § 90-2-1. C.R.S. 1963: § 90-2-1. L. 2018: Entire part amended, (SB 18-090), ch. 72, p. 637, § 2, effective August 8.
ANNOTATION
Analysis
- I. General Consideration.
- II. Rights of Married Women at Common Law.
- III. Statutory Rights of Married Women.
I. GENERAL CONSIDERATION.
Law reviews. For article, "Joint Tenancy in Colorado", see 26 Dicta 313 (1949). For article, "Ownership of Personal Property Accumulated During a Marriage", see 17 Colo. Law. 623 (1988).
This act is an enabling statute and must be liberally construed to effectuate the purposes of its enactment. Wells v. Caywood, 3 Colo. 487 (1877).
Under such construction, controversies respecting the status of married women have practically disappeared from our jurisprudence. Williams v. Williams, 20 Colo. 51, 37 P. 614 (1894).
The wife is placed upon precisely the same footing with a femme sole. Scott v. Mills, 7 Colo. App. 155, 42 P. 1021 (1895).
II. RIGHTS OF MARRIED WOMEN AT COMMON LAW.
Under the common law, the wife was absolutely under the control of her husband, and without his consent she could neither act or contract with reference to any right of property. Daniels v. Benedict, 97 F. 367 (8th Cir. 1899).
During marriage the legal existence of the woman was suspended, or incorporated and consolidated with that of her husband. Daniels v. Benedict, 97 F. 367 (8th Cir. 1899).
Whatever property belonged to her while single, or came to her while covert, passed absolutely to her husband, or fell under his domain. Daniels v. Benedict, 97 F. 367 (8th Cir. 1899).
Moreover, she could possess nothing to her separate use, she could alienate nothing during her life, she could bequeath nothing at her death, she could make no contract, and she could bring no suit. Daniels v. Benedict. 97 F. 367 (8th Cir. 1899).
The wife's identity was completely merged in that of her husband. Schuler v. Henry, 42 Colo. 367, 94 P. 360 (1908).
With but few limitations, he had the control of her person, her property, her children, her labor. Schuler v. Henry, 42 Colo. 367, 94 P. 360 (1908).
Under the common law of England, from which estates by entireties sprang, husband and wife in legal contemplation constituted but one person, and they were merged by marriage into one legal entity or personality, and plurality of persons was not recognized. Whyman v. Johnston, 62 Colo. 461, 163 P. 76 (1917).
She could neither sue nor be sued. Whyman v. Johnston, 62 Colo. 461, 163 P. 76 (1917).
The common-law fiction that husband and wife are one does not exist in Colorado. Rains v. Rains, 97 Colo. 19 , 46 P.2d 740 (1935).
Separateness of spouses is clearly established by Colorado's Equal Rights Amendment, § 29 of art. II, Colo. Const., and by this article. Commercial Union Ins. Co. v. State Farm Fire & Cas. Co., 546 F. Supp. 543 (D. Colo. 1982).
At common law, in the absence of evidence to show the separate ownership of the wife, the law presumed that the property was owned by the husband. Allen v. Eldridge, 1 Colo. 287 (1871).
III. STATUTORY RIGHTS OF MARRIED WOMEN.
A. In General.
By sundry legislative acts, dating from an early period, the disabilities of coverture have been gradually removed. Williams v. Williams, 20 Colo. 51, 37 P. 614 (1894).
The wife in Colorado was emancipated from the condition of thraldom in which she was placed at common law. Wells v. Caywood, 3 Colo. 487 (1877).
The wife in Colorado is the wife under this act, and not the wife at common law, and by this act must her rights be determined, the common law affecting her rights having been swept away. Schuler v. Henry, 42 Colo. 367, 94 P. 360 (1908).
This act removed every disability which coverture had formerly imposed upon married women, so far as their separate property and earnings are concerned. Tuttle v. Shutts, 43 Colo. 534, 96 P. 260 (1908); Hedlund v. Hedlund, 87 Colo. 607, 290 P. 285 (1930).
This act places the married woman upon precisely the same footing with a femme sole, as to all matters relating to her separate property and earnings, and she may make contracts, perform labor and services on her own account, sue and be sued with reference to her separate property, business, and earnings, as if she were sole. Tuttle v. Shutts, 43 Colo. 534, 96 P. 260 (1908); Hedlund v. Hedlund, 87 Colo. 607, 290 P. 285 (1930).
Furthermore, an attempt to apply both the common law and the statutory law must end in failure. Stramann v. Scheeren, 7 Colo. App. 1, 42 P. 191 (1883).
Also, under this section when considered with the other sections of this part of article 2 of title 14, it has been uniformly held that contracts and conveyances between husband and wife are presumptively valid and effectual, without proof aliunde of their equity or justice. Wells v. Caywood, 3 Colo. 487 (1877); Coon v. Rigden, 4 Colo. 275 (1878); O'Connell v. Taney, 16 Colo. 353, 27 P. 888 (1891); Kellogg v. Kellogg, 21 Colo. 181, 40 P. 358 (1895); Daniels v. Benedict, 97 F. 367 (8th Cir. 1899).
Courts can only carefully scrutinize transactions between husband and wife to see that they are not collusive, and in fraud of the rights of others, and then apply to them the same rules and legal principles that control in dealing with others. Stramann v. Scheeren, 7 Colo. App. 1, 42 P. 191 (1895).
Husbands and wives are equal under the law in respect to the conjugal affection and society which each owes to the other. Williams v. Williams, 20 Colo. 51, 37 P. 614 (1894).
Gifts made by the husband, while sick, to the wife, were set aside at the suit of the executors of the husband's estate after his death, because of the undue influence exercised by the latter over the former in procuring the same. Meldrum v. Meldrum, 15 Colo. 478, 24 P. 1083 (1890).
It was held that a deed procured by the fraud of the wife to be made to a third party for her benefit would be set aside in equity Meldrum v. Meldrum, 15 Colo. 478, 24 P. 1083 (1890).
B. Under This Section.
Under this section the wife holds an absolute legal estate as free from the common-law rights of her husband as if she were unmarried. Palmer v. Hanna, 6 Colo. 55 (1881).
For the wife's separate estate when she has no husband, see Palmer v. Hanna, 6 Colo. 55 (1881).
Since this section confers upon the wife capacity to take and dispose of real property free from any restraint, the reason of the common-law rule has ceased to exist. Wells v. Caywood, 3 Colo. 487 (1877); Whyman v. Johnston, 62 Colo. 461, 163 P. 76 (1917).
This section provides that any gift of money from the husband shall be the sole and separate property of the wife, and not subject to the disposal of the husband or his creditors. Woodruff v. Clarke, 128 Colo. 387 , 262 P.2d 737 (1953).
Where the husband owned city lots and the wife had money which she desired to invest, and under mutual agreement the lots were improved with her money, it was held that she had an equitable interest in the property which could be asserted against her husband. Stramann v. Scheeren, 7 Colo. App. 1, 42 P. 191 (1895).
Where the husband acquires and pays for real property, and causes his wife's name to be inserted in the deed as one of the grantees therein, there is a presumption that he intended it as a gift or advancement, and the burden of showing otherwise is upon him who asserts it. Woodruff v. Clarke, 128 Colo. 387 , 262 P.2d 737 (1953).
There can be no doubt of the power of a husband to dispose absolutely of his property during his life, independently of the concurrence, and exonerated from the claim of his wife, provided the transaction is not merely colorable, and is unattended with circumstances indicative of fraud upon the rights of the wife. Goldberg v. Musim, 162 Colo. 461 , 427 P.2d 698 (1967).
If the disposition of the husband be bona fide, and no right is reserved to him, though made to defeat the right of the wife, it will be good against her. Goldberg v. Musim, 162 Colo. 461 , 427 P.2d 698 (1967).
14-2-202. Married person may sue and be sued.
A person, while married, may sue and be sued, in all matters having relation to his or her property, person, or reputation, in the same manner as if he or she were unmarried.
Source: R.S. p. 455, § 3. G.L. § 1749. G.S. § 2268. R.S. 08: § 4182. C.L. § 5577. CSA: C. 108, § 2. CRS 53: § 90-2-2. C.R.S. 1963: § 90-2-2. L. 2018: Entire part amended, (SB 18-090), ch. 72, p. 638, § 2, effective August 8.
Cross references: For the rule of civil procedure authorizing married women to sue as if sole, see C.R.C.P. 17(b).
ANNOTATION
Law reviews. For article, "Damages Recoverable for Injuries to A Spouse in Colorado", see 28 Dicta 291 (1951).
Until 1874 married women were under disability and could not sue or be sued except in matters relating to their separate estates. Schuler v. Henry, 42 Colo. 367, 94 P. 360, (1908).
The statute up to that time also provided that when judgment was rendered against the husband and wife for the tort of the wife, execution should first be levied on the lands of the wife, if she had any. Schuler v. Henry, 42 Colo. 367, 94 P. 360 (1908).
This section contains the provision which emancipates married women from many of the disabilities imposed by the common law, and the decisions of the courts lay emphasis on the wife's independence of her husband in that she is guaranteed a remedy against ill persons, including her husband, for every personal injury she may sustain. Giggey v. Gallagher Transp. Co., 101 Colo. 258 , 72 P.2d 1100 (1937).
There is no exception as to the person the wife may sue. Rains v. Rains, 97 Colo. 19 , 24, 46 P.2d 740 (1935).
In view of the broad, liberal provisions of the constitution and statutes of this state, and the liberal construction thereof adopted by the courts of this state, the supreme court of Colorado was unwilling to follow the decisions of courts that held that a wife had no right to sue her husband for a personal injury caused by him. Rains v. Rains, 97 Colo. 19 , 46 P.2d 740 (1935).
This section admits a married woman to the courts upon the same terms as if she were sole, and for this reason, if for no other, she cannot claim indulgence on the ground of coverture. Mills v. Angela, 1 Colo. 334 (1871).
The married woman is not like an infant who is incapable of acting for himself, and is compelled to rely upon a guardian ad litem, who may be careless or unfaithful. Mills v. Angela, 1 Colo. 334 (1871).
The law clothes her with power to manage her own affairs, and she ought to accept the responsibility which attends upon free agency. Mills v. Angela, 1 Colo. 334 (1871).
She is under no disability in respect to the time or manner of putting in her defense to an action brought against her. Mills v. Angela, 1 Colo. 334 (1871).
To enable a wife to join with her husband in an action upon an undertaking, the engagement must have been with her distinctly and unquestionably. Allen v. Eldridge, 1 Colo. 287 (1871).
The wife may maintain an action for damages against one who wrongfully induces and procures her husband to abandon her or send her away. Williams v. Williams, 20 Colo. 51, 37 P. 614 (1894).
A husband has a right to maintain an action against his wife to recover property belonging to him. Hedlund v. Hedlund, 87 Colo. 607, 290 P. 285 (1930).
So diverse are the rights and interests, the duties, obligations, and disabilities of husband and wife now, that it would be most unreasonable to hold him still liable for the torts committed by her without his presence and without his consent or approbation. Schuler v. Henry, 42 Colo. 367, 94 P. 360 (1908).
The Uniform Marriage Act neither expressly nor impliedly creates a private cause of action. Weiszmann v. Kirkland and Ellis, 732 F. Supp. 1540 (D. Colo. 1990).
14-2-203. Rights in separate business.
A married person may carry on any trade or business and perform any labor or services on his or her sole and separate account, and the earnings of a married person from his or her trade, business, labor, or services is his or her sole and separate property and may be used and invested by him or her in his or her own name. Property acquired by trade, business, and services by the married person and the proceeds may be taken on any execution against the person.
Source: R.S. p. 455, § 6. G.L. § 1752. G.S. § 2271. R.S. 08: § 4183. C.L. § 5578. CSA: C. 108, § 3. CRS 53: § 90-2-3. C.R.S. 1963: § 90-2-3. L. 2018: Entire part amended, (SB 18-090), ch. 72, p. 638, § 2, effective August 8.
ANNOTATION
Modern legal theory and statute have placed women on an equal footing with men regarding their rights to hold and manage property. Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971).
The wife is still to perform the usual and ordinary household duties. Denver & R. G. R. R. v. Young, 30 Colo. 349, 70 P. 688 (1902).
For such household services, she is not entitled to any monetary compensation from her husband. Denver & R. G. R. R. v. Young, 30 Colo. 349, 70 P. 688 (1902).
In an action by a married woman, living at the time with her husband, for damages for personal injuries alleged to have been caused by the negligence of defendant, she is not entitled to recover damages to compensate her for her inability to perform ordinary household duties. Denver & R. G. R. R. v. Young, 30 Colo. 349, 70 P. 688 (1902).
A contract between the husband and wife, by which the wife reserves to herself the earnings of her labor performed for her husband, in matters apart from the domestic duties of the wife pertaining strictly to the household and the family, may be entered into by the wife as if she were sole, and for this reason such contract cannot be held to be against public policy. Tuttle v. Shutts, 43 Colo. 534, 96 P. 260 (1908).
Contracts between a husband and his wife are not presumptively void. Daniels v. Benedict, 97 F. 367 (8th Cir. 1899).
Since some contracts between parties in fiduciary relations to each other are valid, and some are voidable or void, and some contracts between strangers are valid, and some are void, no definite conclusion can be drawn as to the validity or invalidity of a contract from the fact that the parties to it occupied a fiduciary relation to each other. Daniels v. Benedict, 97 F. 367 (8th Cir. 1899).
A promissory note given by a married woman and her husband, for property purchased by her as a sole trader, is valid in law, and the amount of such note may be recovered against the husband and wife in an action of assumpsit. Barnes v. De France, 2 Colo. 294 (1874).
Since under this section the rights of the wife to manage and control her individual property are well established, the relation of debtor and creditor may exist between husband and wife as fully as if both were sole, and the wife may deal with the husband as with a stranger, and in case of the insolvency of the husband, he may pay the wife to the exclusion of other creditors, but the existence of the individual property and the bona fides of the debt must, as in other cases, be fully established. Knapp v. Day, 4 Colo. App. 21, 34 P. 1008 (1893).
Under this section a husband is deprived of all interest in the labor of his wife rendered to third persons, and a married woman may maintain an action in her own name to recover her earnings. Allen v. Eldridge, 1 Colo. 287 (1871).
It may be contended that the words "on her sole and separate account", in the first clause of this section restrict the woman's right to cases in which she declares her intention to appropriate the proceeds of her labor to her own use. But there is little room for such construction, because it must be presumed that every one who labors for hire is seeking his own personal emolument, for men do not sow that others may reap, and the highest claim to the fruits of labor is vested in him who performs it, and none other need be asserted. Allen v. Eldridge, 1 Colo. 287 (1871).
14-2-204. Not to affect marriage settlements.
Nothing in sections 14-2-201 to 14-2-206 invalidates any marriage settlement or contract.
Source: R.S. p. 455, § 7. G.L. § 1753. G.S. § 2272. R.S. 08: § 4184. C.L. § 5579. CSA: C. 108, § 4. CRS 53: § 90-2-4. C.R.S. 1963: § 90-2-4. L. 2018: Entire part amended, (SB 18-090), ch. 72, p. 638, § 2, effective August 8.
14-2-205. Married person's land subject to judgment.
When a person against whom liability exists marries and has or acquires lands, judgment on such liability may be rendered against him or her and his or her husband or wife jointly, to be levied on such lands only.
Source: R.S. p. 455, § 10. G.L. § 1756. G.S. § 2275. R.S. 08: § 4187. C.L. § 5582. CSA: C. 108, § 7. CRS 53: § 90-2-7. C.R.S. 1963: § 90-2-7. L. 2018: Entire part amended, (SB 18-090), ch. 72, p. 638, § 2, effective August 8.
14-2-206. Spouse cannot convey other spouse's lands.
The separate deed of a spouse conveys no interest in the other spouse's lands.
Source: R.S. p. 455, § 12. G.L. § 1757. G.S. § 2276. R.S. 08: § 4188. C.L. § 5583. CSA: C. 108, § 8. CRS 53: § 90-2-8. C.R.S. 1963: § 90-2-8. L. 2018: Entire part amended, (SB 18-090), ch. 72, p. 638, § 2, effective August 8.
14-2-207. Spouse may convey lands as if unmarried.
A person, while married, may bargain, sell, and convey his or her real and personal property and enter into any contract in reference to the same as if he or she were unmarried.
Source: R.S. p. 455, § 2. L. 1874: p. 185, § 1. G.L. § 1759. G.S. § 2278. R.S. 08: § 4190. C.L. § 5585. CSA: C. 108, § 10. CRS 53: § 90-2-9. C.R.S. 1963: § 90-2-9. L. 2018: Entire part amended, (SB 18-090), ch. 72, p. 638, § 2, effective August 8.
ANNOTATION
At common law, a married woman could convey her estate only by fine and recovery. Keller v. Klopfer, 3 Colo. 132 (1876).
Under the early law, it was provided that to convey her lands a married woman should unite with her husband in making the conveyance, that she should acknowledge the same, separate and apart from her husband, that the officer hearing the acknowledgment should certify that the same was made upon examination separate, apart from, and out of the presence of her husband, and that the contents, meaning, and effect of such deed were by the officer fully explained to the wife. Keller v. Klopfer, 3 Colo. 132 (1876); Nippel v. Hammond, 4 Colo. 211 (1878); Knight v. Lawrence, 19 Colo. 425, 36 P. 242 (1894).
Under present law, the married woman is in law deemed capable of managing her own affairs, and she has the power as well as the right to convey her real estate without let or hindrance from any one, and she requires no protection, and she suffers no restraints, in such matters. Knight v. Lawrence, 19 Colo. 425, 36 P. 242 (1894); Wells v. Caywood, 3 Colo. 487 (1877); Colo. Cent. R. R. v. Allen, 13 Colo. 229, 22 P. 605 (1889).
It was the intention to clothe her with all the rights of a femme sole. Scott v. Mills, 7 Colo. App. 155, 42 P. 1021 (1895).
The wife may make conveyance directly to her husband and the removal in respect to the wife of a disability that is mutual, and springing from the same source, removes it also as to the husband, and the husband may, acting in his own right, convey directly to the wife. Wells v. Caywood, 3 Colo. 487 (1877); O'Connell v. Taney, 16 Colo. 353, 27 P. 888 (1891); Rose v. Otis, 18 Colo. 59, 31 P. 493 (1892); Kellogg v. Kellogg, 21 Colo. 181, 40 P. 358 (1895); Scott v. Mills, 7 Colo. App. 155, 42 P. 1021 (1895); Stramann v. Scheeren, 7 Colo. App. 1, 42 P. 191 (1895); Tuttle v. Shutts, 43 Colo. 534, 96 P. 260 (1908).
In the nature of things and in the legislative mind, the husband and wife both possess the character of a householder and head of a family, at least to the extent to enable either of them owning the home they occupy to designate it as a homestead. McPhee v. O'Rourke, 10 Colo. 301, 15 P. 420 (1887).
14-2-208. Married person may contract.
A person, while married, may contract debts in his or her own name and upon his or her own credit, and may execute promissory notes, bonds, bills of exchange, and other instruments in writing, and may enter into any contract the same as if he or she were unmarried. In all cases where any suit or other legal proceedings are instituted against the married person and any judgment, decree, or order is rendered or pronounced against the married person, the same may be enforced by execution or other process against the married person as if he or she were unmarried.
Source: L. 1874: p. 185, § 3. G.L. § 1761. G.S. § 2280. R.S. 08: § 4191. C.L. § 5586. CSA: C. 108, § 11. CRS 53: § 90-2-10. C.R.S. 1963: § 90-2-10. L. 2018: Entire part amended, (SB 18-090), ch. 72, p. 638, § 2, effective August 8.
ANNOTATION
At common law a married woman, though living apart from her husband, could not make a binding contract except for necessaries or for the benefit of her separate estate. Ferrand v. Beshoar, 9 Colo. 291, 12 P. 196 (1886).
In equity, before the statutes of 1872 and 1874, the written contract of a married woman, for the benefit of other persons, was not a charge upon her separate estate unless it contained an express provision to that effect. Ferrand v. Beshoar, 9 Colo. 291, 12 P. 196 (1886).
By the act of 1861, to protest the rights of married women, a wife could make contracts respecting her separate business and estate, but beyond these limits her contracts were governed by the common law and were therefore void, and she could not warrant her husband's title to realty, or covenant for his act or default in any respect whatever. Holladay v. Dailey, 1 Colo. 460 (1872).
In an action on contract against a married woman, a plea of coverture, without more, is not sufficient in law as a defense. Rose v. Otis, 18 Colo. 59, 31 P. 493 (1892).
Where the husband was joined as a codefendant with his wife in the district court, he not being a party to the contract sued upon, and no relief having been demanded against him in the complaint, it was held that upon default judgment should have been entered against the wife alone. Wilbur v. Maynard, 6 Colo. 483 (1883).
14-2-209. Loss of consortium.
In all actions for a tort by a married person, both spouses have an equal right to recover for loss of consortium of his or her spouse.
Source: L. 61: p. 560, § 1. CRS 53: § 90-2-11. C.R.S. 1963: § 90-2-11. L. 2018: Entire part amended, (SB 18-090), ch. 72, p. 638, § 2, effective August 8.
ANNOTATION
While it was true that because of the married women's acts, married women could successfully maintain actions for interference with their rights to consortium which arose from intentional, malicious, or direct action by an outsider, nevertheless, the prevailing opinion and great weight of authority denied such an action to a married woman for indirect, remote, or consequential loss, and thus, a married woman had no right to recover for the loss of consortium alone occasioned by the negligent acts of third persons. Giggey v. Gallagher Transp. Co., 101 Colo. 258 , 72 P.2d 1100 (1937) (decided prior to earliest source of this section, L. 61, p. 560 , § 1); Franzen v. Zimmerman, 127 Colo. 381 , 256 P.2d 897 (1953).
With the enactment of this section the rule denying a wife the right to sue for loss of consortium resulting from injuries inflicted upon her husband changed. Crouch v. West, 29 Colo. App. 72, 477 P.2d 805 (1970).
At the time of the enactment of this statute, the right of a husband to recover for loss of consortium due to injuries inflicted upon his wife had not been denied or restricted by any later or higher authority. Crouch v. West, 29 Colo. App. 72, 477 P.2d 805 (1970).
The general assembly intended to confer such right upon the wife, and to confer it upon her as a separate right similar to that held by married men. Crouch v. West, 29 Colo. App. 72, 477 P.2d 805 (1970).
There may in such situations have been but one wrong, but from it sprang two separate and distinct rights of action, one in the husband and the other in the wife. Crouch v. West, 29 Colo. App. 72, 477 P.2d 805 (1970).
Their actions are wholly distinct and separate from each other, and since there is no privity between them in the connection involved, and adjudication in one could not properly be res judicata in the other. Crouch v. West, 29 Colo. App. 72, 477 P.2d 805 (1970).
Since the claim of the wife is her own right and is a right which is separate from the claims of her husband, it could have been and was validly separated from the pretrial settlement of the husband's claim for his personal injuries. Crouch v. West, 29 Colo. App. 72, 477 P.2d 805 (1970).
Recovery for loss between tort and time of death. Plaintiff bringing an action individually, as widow of the decedent, may recover for "loss of consortium" between the time the tort occurred and the date of decedent's death. Hernandez v. United States, 383 F. Supp. 168 (D. Colo. 1974).
Loss not within former limits of wrongful death statute. Loss of consortium is an independent category, not to be included in those damages formerly limited under the wrongful death statute. Hernandez v. United States, 383 F. Supp. 168 (D. Colo. 1974).
14-2-210. Domicile.
The right of a person to become a resident domiciled in the state of Colorado must not be denied or abridged because of sex or marital status, and the common law rule that the domicile of a married person is that of his or her spouse is no longer in effect in this state.
Source: L. 69: p. 824, § 1. C.R.S. 1963: § 90-2-12. L. 73: p. 1022, § 1. L. 2018: Entire part amended, (SB 18-090), ch. 72, p. 638, § 2, effective August 8.
PART 3 UNIFORM PREMARITAL AND MARITAL AGREEMENTS ACT
Editor's note: This part 3 was added in 1986. It was repealed and reenacted in 2013, effective July 1, 2014, resulting in the addition, relocation, or elimination of sections as well as subject matter. For amendments to this part 3 prior to 2013, consult the 2012 Colorado Revised Statutes and the Colorado statutory research explanatory note beginning on page vii in the front of this volume. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated.
Law reviews: For article, "Marital Agreements", see 18 Colo. Law. 31 , (1989); for article, "Update on Ethics and Malpractice Avoidance in Family Law -- Parts I and II", see 19 Colo. Law. 465 and 647 (1990); for article, "An Historical Perspective on Marital Agreements", see 20 Colo. Law. 467 (1991); for article, "Prenuptial Agreements and the Dead Man's Statute", see 23 Colo. Law. 357 (1994); for article, "Beware of the Trap -- Marital Agreements and ERISA Benefits", see 23 Colo. Law. 57 7 (1994); for article, "Marital Agreements and the Colorado Marital Agreement Act", see 32 Colo. Law. 59 (Aug. 2003); for article, "Prenuptial Agreements and Retirement Plan Assets", see 33 Colo. Law. 43 (Feb. 2004); for article, "Marital Agreements in Colorado", see 36 Colo. Law. 53 (Feb. 2007); for article, "Benefits Issues Arise When Same-Sex Relationships End", see 42 Colo. Law. 77 (Aug. 2013); for article, "Colorado's New Uniform Premarital and Marital Agreements Act", see 43 Colo. Law. 57 (March 2014).
14-2-301. Short title.
This part 3 may be cited as the "Uniform Premarital and Marital Agreements Act".
Source: L. 2013: Entire part R&RE, (HB 13-1204), ch. 239, p. 1159, § 1, effective July 1, 2014.
Editor's note: This section is similar to former § 14-2-301 as it existed prior to 2013.
14-2-302. Definitions.
In this part 3:
- "Amendment" means a modification or revocation of a premarital agreement or marital agreement.
- "Marital agreement" means an agreement between spouses who intend to remain married which affirms, modifies, or waives a marital right or obligation during the marriage or at legal separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event. The term includes an amendment, signed after the spouses marry, of a premarital agreement or marital agreement.
- "Marital dissolution" means the ending of a marriage by court decree. The term includes a divorce, dissolution, and annulment.
-
"Marital right or obligation" means any of the following rights or obligations arising between spouses because of their marital status:
- Spousal maintenance;
- A right to property, including characterization, management, and ownership;
- Responsibility for a liability;
- A right to property and responsibility for liabilities at legal separation, marital dissolution, or death of a spouse; or
- An award and allocation of attorney's fees and costs.
- "Premarital agreement" means an agreement between individuals who intend to marry which affirms, modifies, or waives a marital right or obligation during the marriage or at legal separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event. The term includes an amendment, signed before the individuals marry, of a premarital agreement.
- "Property" means anything that may be the subject of ownership, whether real or personal, tangible or intangible, legal or equitable, or any interest therein, including income and earnings.
- "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
-
"Sign" means with present intent to authenticate or adopt a record:
- To execute or adopt a tangible symbol; or
- To attach to or logically associate with the record an electronic symbol, sound, or process.
- "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
Source: L. 2013: Entire part R&RE, (HB 13-1204), ch. 239, p. 1159, § 1, effective July 1, 2014.
Editor's note: This section is similar to former §§ 14-2-302 and 14-2-306 as they existed prior to 2013.
ANNOTATION
Annotator's note. Since § 14-2-302 is similar to § 14-2-302 as it existed prior to the 2013 repeal and reenactment of this part 3, relevant cases construing that provision have been included in the annotations to this section.
The requirement of subsection (1) that present spouses sign a marital agreement prior to the filing of a dissolution action is based on public policy considerations that seek to safeguard the interests of a spouse involved in the emotionally stressful circumstances of a dissolution action. In re Lafaye, 89 P.3d 455 (Colo. App. 2003).
The more specific language of this act, requiring that marital agreements be in writing and signed by both parties, prevails over the general language in § 14-10-113 . Although § 14-10-113 (2)(d) does not require a "valid agreement" to be in writing, in harmonizing the statutes, subsection (1) of this section must be given effect. Therefore, parties' oral agreement during marriage to exclude the parties' respective retirement accounts and inheritances from the marital estate was not a valid agreement. In re Zander, 2019 COA 149 , __ P.3d __.
Home excluded from marital property where husband conveyed the home to wife as her separate property through an interspousal transfer deed with the intent to make it her separate property. Although not a marital agreement under this act, because it was not signed by both parties, transfer was upheld because husband conveyed the property to wife as her sole property, admitting that this was his intent and that he was familiar with the concept of separate property. A conveyance is different from an agreement to convey. Therefore, the interspousal transfer deed did not have to meet the requirements and formalities of this act. In re Blaine, 2019 COA 164 , __ P.3d __.
Agreement entered into between parties eight days prior to commencement of an action for dissolution in Sweden constitutes a marital agreement. Matter of C.G.G., 946 P.2d 603 (Colo. App. 1997).
Where agreement was entered into two days prior to mailing Mexican divorce papers and two months before the filing of a Colorado petition for dissolution of marriage, but executed in contemplation of a dissolution of marriage, it must be considered a separation agreement. In re Bisque, 31 P.3d 175 (Colo. App. 2001).
Post-nuptial agreement not enforceable under the plain language of the act because it was signed by husband and wife during the pendency of the prior dissolution action. In re Lafaye, 89 P.3d 455 (Colo. App. 2003).
Giving effect to a nunc pro tunc dismissal of a dissolution of marriage action would be contrary to the public policy of the Colorado Marital Agreement Act where not only did the parties sign a post-nuptial agreement while a dissolution action was pending, but counsel had admonished the parties not to sign the agreement until that action had actually been dismissed. By the time counsel signed the stipulation for dismissal, the parties' attempted reconciliation had failed. In re Lafaye, 89 P.3d 455 (Colo. App. 2003).
14-2-303. Scope.
- This part 3 applies to a premarital agreement or marital agreement signed on or after July 1, 2014.
- This part 3 does not affect any right, obligation, or liability arising under a premarital agreement or marital agreement signed before July 1, 2014.
-
This part 3 does not apply to:
- An agreement between spouses which affirms, modifies, or waives a marital right or obligation and requires court approval to become effective; or
- An agreement between spouses who intend to obtain a marital dissolution or court-decreed legal separation which resolves their marital rights or obligations and is signed when a proceeding for marital dissolution or court-decreed legal separation is anticipated or pending.
- This part 3 does not affect adversely the rights of a bona fide purchaser for value to the extent that this part 3 applies to a waiver of a marital right or obligation in a transfer or conveyance of property by a spouse to a third party.
Source: L. 2013: Entire part R&RE, (HB 13-1204), ch. 239, p. 1160, § 1, effective July 1, 2014.
14-2-303.5. Applicability of part and case law to agreements relating to civil unions.
Prospective parties to a civil union and present parties to a civil union may contract to make an agreement relating to the civil union that includes any of the rights and obligations that may be included in a premarital agreement or marital agreement pursuant to this part 3. The provisions of this part 3 and any case law construing this part 3 apply to any agreement made by prospective parties to a civil union or between present parties to a civil union.
Source: L. 2013: Entire section added with relocations, (HB 13-1204), ch. 239, p. 1164, § 2, effective July 1, 2014. L. 2015: Entire section amended, (SB 15-264), ch. 259, p. 950, § 34, effective August 5.
Editor's note: This section is similar to former § 14-2-307.5 as it existed prior to 2013.
14-2-304. Governing law.
-
The validity, enforceability, interpretation, and construction of a premarital agreement or marital agreement are determined:
- By the law of the jurisdiction designated in the agreement if the jurisdiction has a significant relationship to the agreement or either party at the time the agreement was signed and the designated law is not contrary to section 14-2-309 or to a fundamental public policy of this state; or
- Absent an effective designation described in paragraph (a) of this subsection (1), by the law of this state, including the choice-of-law rules of this state.
Source: L. 2013: Entire part R&RE, (HB 13-1204), ch. 239, p. 1161, § 1, effective July 1, 2014.
14-2-305. Principles of law and equity.
Unless displaced by a provision of this part 3, principles of law and equity supplement this part 3.
Source: L. 2013: Entire part R&RE, (HB 13-1204), ch. 239, p. 1161, § 1, effective July 1, 2014.
14-2-306. Formation requirements.
A premarital agreement or marital agreement must be in a record and signed by both parties. The agreement is enforceable without consideration.
Source: L. 2013: Entire part R&RE, (HB 13-1204), ch. 239, p. 1161, § 1, effective July 1, 2014.
Editor's note: This section is similar to former § 14-2-303 as it existed prior to 2013.
14-2-307. When agreement effective.
A premarital agreement is effective on marriage. A marital agreement is effective on signing by both parties.
Source: L. 2013: Entire part R&RE, (HB 13-1204), ch. 239, p. 1161, § 1, effective July 1, 2014.
Editor's note: This section is similar to former § 14-2-305 as it existed prior to 2013.
14-2-308. Void marriage.
If a marriage is determined to be void, a premarital agreement or marital agreement is enforceable to the extent necessary to avoid an inequitable result.
Source: L. 2013: Entire part R&RE, (HB 13-1204), ch. 239, p. 1161, § 1, effective July 1, 2014.
Editor's note: This section is similar to former § 14-2-308 as it existed prior to 2013.
14-2-309. Enforcement.
-
A premarital agreement or marital agreement is unenforceable if a party against whom enforcement is sought proves:
- The party's consent to the agreement was involuntary or the result of duress;
- The party did not have access to independent legal representation under subsection (2) of this section;
- Unless the party had independent legal representation at the time the agreement was signed, the agreement did not include a notice of waiver of rights under subsection (3) of this section or an explanation in plain language of the marital rights or obligations being modified or waived by the agreement; or
- Before signing the agreement, the party did not receive adequate financial disclosure under subsection (4) of this section.
-
A party has access to independent legal representation if:
-
Before signing a premarital or marital agreement, the party has a reasonable time to:
- Decide whether to retain a lawyer to provide independent legal representation; and
- Locate a lawyer to provide independent legal representation, obtain the lawyer's advice, and consider the advice provided; and
- The other party is represented by a lawyer and the party has the financial ability to retain a lawyer or the other party agrees to pay the reasonable fees and expenses of independent legal representation.
-
Before signing a premarital or marital agreement, the party has a reasonable time to:
- A notice of waiver of rights under this section requires language, conspicuously displayed, substantially similar to the following, as applicable to the premarital agreement or marital agreement:
-
A party has adequate financial disclosure under this section if the party:
- Receives a reasonably accurate description and good-faith estimate of value of the property, liabilities, and income of the other party; or
- [Reserved]
- Has adequate knowledge or a reasonable basis for having adequate knowledge of the information described in paragraph (a) of this subsection (4).
- A premarital agreement or marital agreement or amendment thereto or revocation thereof that is otherwise enforceable after applying the provisions of subsections (1) to (4) of this section is nevertheless unenforceable insofar, but only insofar, as the provisions of such agreement, amendment, or revocation relate to the determination, modification, limitation, or elimination of spousal maintenance or the waiver or allocation of attorney fees, and such provisions are unconscionable at the time of enforcement of such provisions. The issue of unconscionability shall be decided by the court as a matter of law.
- [Reserved]
- [Reserved]
- A premarital or marital agreement, or an amendment of either, that is not in a record and signed by both parties is unenforceable.
If you sign this agreement, you may be: Giving up your right to be supported by the person you are marrying or to whom you are married. Giving up your right to ownership or control of money and property. Agreeing to pay bills and debts of the person you are marrying or to whom you are married. Giving up your right to money and property if your marriage ends or the person to whom you are married dies. Giving up your right to have your legal fees paid.
Source: L. 2013: Entire part R&RE, (HB 13-1204), ch. 239, p. 1161, § 1, effective July 1, 2014. L. 2015: (5) amended, (SB 15-264), ch. 259, p. 950, § 35, effective August 5.
Editor's note: This section is similar to former § 14-2-307 as it existed prior to 2013.
ANNOTATION
Annotator's note. Since § 14-2-309 is similar to § 14-2-307 as it existed prior to the 2013 repeal and reenactment of this part 3, relevant cases construing that provision have been included in the annotations for this section. For cases dealing with the validity of marital agreements prior to 1986, see the annotations to §§ 14-10-112 and 14-10-113.
A trial court must find that the maintenance provisions of an otherwise valid antenuptial agreement are unconscionable at the time a divorce decree is entered in order to award maintenance to a party. In re Dechant, 867 P.2d 193 (Colo. App. 1993) (decided under law in effect prior to amendment effective July 1, 1986).
In determining unconscionability, the terms "appropriate employment" and "reasonable needs" are not to be interpreted so narrowly as to require a spouse to establish that he or she lacks the minimum resources to sustain life. In re Dechant, 867 P.2d 193 (Colo. App. 1993) (decided under law in effect prior to amendment effective July 1, 1986).
Trial court may review a waiver of attorney fees in a marital agreement for unconscionability at the time of dissolution, because an unconscionable waiver violates the public policy interest behind protecting spouses and thus is not a valid contract term under § 14-2-304. In re Ikeler, 161 P.3d 663 (Colo. 2007).
Standards for determining unconscionability. Generally, an agreement under this section is unconscionable if it is not fair, reasonable, and just. In re Christen, 899 P.2d 339 (Colo. App. 1995).
Speculation about possible future events, such as unemployment, disability, and remarriage, do not indicate that the agreement is at present unconscionable. In re Christen, 899 P.2d 339 (Colo. App. 1995).
When the parties enter into an agreement that provides for maintenance to be paid year-to-year in an amount calculated in accordance with a formula agreed upon by the parties and accepted as not unconscionable by the court, the trial court acts within its discretion in not setting forth an exact amount of maintenance in its decree of dissolution and permanent orders. In re Christen, 899 P.2d 339 (Colo. App. 1995).
In order for agreement for binding Rabbinical arbitration to be enforceable, it must be conscionable and must be entered into by the parties voluntarily after full disclosure. In re Popack, 998 P.2d 464 (Colo. App. 2000).
Waiver of attorney fee provision in an antenuptial agreement is voidable on the grounds of unconscionability. In re Dechant, 867 P.2d 193 (Colo. App. 1993) (decided under law in effect prior to amendment effective July 1, 1986).
Marital agreement need not be approved by the court nor a complete agreement as to the disposition of all of the parties' property to be enforceable. In re Goldin, 923 P.2d 376 (Colo. App. 1996).
But marital agreement must contain a fair and reasonable disclosure of property and financial obligations of the party seeking to enforce it, and prenuptial agreement that was blank at the time wife signed it was unenforceable by husband. In re Seewald, 22 P.3d 580 (Colo. App. 2001).
Agreement entered into just prior to marriage and a subsequent agreement entered into just prior to filing petition for dissolution were correctly considered not to be enforceable agreements under the Colorado Marital Agreement Act. Trial court correctly determined that the premarital agreement was not an enforceable premarital agreement because the parties were not contemplating marriage when they entered into it. Similarly, the later agreement was not an enforceable marital agreement because it was signed after wife petitioned for dissolution of marriage and because the parties were not on an equal emotional or economic footing. In re Green, 169 P.3d 202 (Colo. App. 2007).
14-2-310. Unenforceable terms.
- In this section, "custodial responsibility" means parental rights and responsibilities, parenting time, access, visitation, or other custodial right or duty with respect to a child.
-
A term in a premarital agreement or marital agreement is not enforceable to the extent that it:
- Adversely affects a child's right to support;
- Limits or restricts a remedy available to a victim of domestic violence under law of this state other than this part 3;
- Purports to modify the grounds for a court-decreed legal separation or marital dissolution available under law of this state other than this part 3;
- Penalizes a party for initiating a legal proceeding leading to a court-decreed legal separation or marital dissolution; or
- Violates public policy.
- A term in a premarital agreement or marital agreement which defines the rights or duties of the parties regarding custodial responsibility is not binding on the court.
Source: L. 2013: Entire part R&RE, (HB 13-1204), ch. 239, p. 1163, § 1, effective July 1, 2014.
14-2-311. Limitation of action.
A statute of limitations applicable to an action asserting a claim for relief under a premarital agreement or marital agreement is tolled during the marriage of the parties to the agreement, but equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.
Source: L. 2013: Entire part R&RE, (HB 13-1204), ch. 239, p. 1163, § 1, effective July 1, 2014.
Editor's note: This section is similar to former § 14-2-309 as it existed prior to 2013.
14-2-312. Uniformity of application and construction.
In applying and construing this uniform act, consideration may be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
Source: L. 2013: Entire part R&RE, (HB 13-1204), ch. 239, p. 1164, § 1, effective July 1, 2014.
14-2-313. Relation to electronic signatures in global and national commerce act.
This part 3 modifies, limits, or supersedes the federal "Electronic Signatures in Global and National Commerce Act", 15 U.S.C. section 7001 et seq., but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. section 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. section 7003(b).
Source: L. 2013: Entire part R&RE, (HB 13-1204), ch. 239, p. 1164, § 1, effective July 1, 2014.
DOMESTIC ABUSE
ARTICLE 4 DOMESTIC ABUSE
Cross references: For the "Child Protection Act of 1987", see part 3 of article 3 of title 19; for jurisdiction of county and district courts to issue orders to prevent domestic abuse, see article 14 of title 13; for provisions relating to domestic abuse programs, see article 7.5 of title 26.
Section
14-4-101. Definitions. (Repealed)
Source: L. 82: Entire article added, p. 299, § 1, effective April 23. L. 89: (2) amended, p. 783, § 1, effective April 19. L. 95: (2) amended, p. 513, § 1, effective July 1. L. 2004: Entire section repealed, p. 554, § 5, effective July 1.
14-4-102. Restraining orders to prevent domestic abuse. (Repealed)
Source: L. 82: Entire article added, p. 299, § 1, effective April 23. L. 89: Entire section R&RE, p. 783, § 2, effective April 19. L. 91: (1) and (5) amended, p. 743, § 5, effective April 4; (7.5) added, p. 420, § 4, effective May 31. L. 93: (2)(d)(II) and (7.5) amended, pp. 576, 1725, §§ 3, 2, effective July 1. L. 94: (2), (6), (7.5)(b), and (8) amended, p. 933, § 1, effective July 1; (2)(d)(II), (4), and (7) amended and (7.5)(c), (13), and (14) added, p. 2031, §§ 8, 9, effective July 1; (5), (9), and (10) amended and (15) added, p. 2007, § 2, effective January 1, 1995. L. 95: (14) amended, pp. 513, 568, §§ 2, 5, effective July 1. L. 96: (14) amended, p. 1688, § 17, effective January 1, 1997. L. 98: (1) and (5) amended, p. 244, § 3, effective April 13. L. 99: Entire section repealed, p. 501, § 6, effective July 1.
14-4-103. Emergency protection orders. (Repealed)
Source: L. 82: Entire article added, p. 300, § 1, effective April 23. L. 83: (3)(a) amended, p. 640, § 1, effective April 29. L. 89: (3)(a) and (4) amended, p. 785, § 3, effective April 19. L. 91: (4) amended, p. 239, § 1, effective July 1. L. 96: (5) amended, p. 1840, § 1, effective July 1. L. 99: (4) amended, p. 501, § 7, effective July 1. L. 2003: (4) amended, p. 1010, § 12, effective July 1. L. 2004: Entire section repealed, p. 554, § 5, effective July 1.
14-4-104. Duties of peace officers - enforcement of emergency protection orders. (Repealed)
Source: L. 82: Entire article added, p. 301, § 1, effective April 23. L. 85: Entire section R&RE, p. 585, § 1, effective March 10. L. 89: Entire section amended, p. 785, § 4, effective April 19. L. 91: (1) amended, p. 420, § 5, effective May 31. L. 92: Entire section amended, p. 293, § 3, effective April 23; entire section amended, p. 175, § 1, effective July 1. L. 94: Entire section amended, p. 2033, § 10, effective July 1; entire section amended, p. 2007, § 3, effective January 1, 1995. L. 99: Entire section amended, p. 502, § 8, effective July 1. L. 2004: Entire section repealed, p. 554, § 5, effective July 1.
14-4-105. Violations of orders.
A person failing to comply with any order of the court issued pursuant to this article shall be found in contempt of court and, in addition, may be punished as provided in section 18-6-803.5, C.R.S.
Source: L. 82: Entire article added, p. 301, § 1, effective April 23. L. 91: Entire section amended, p. 419, § 2, effective May 31.
ANNOTATION
Law reviews. For article, "Legislative Activities in Family Law", see 11 Colo. Law. 1560 (1982).
14-4-106. Venue. (Repealed)
Source: L. 95: Entire section added, p. 569, § 7, effective July 1. L. 2010: Entire section repealed, (HB 10-1422), ch. 419, p. 2069, § 24, effective August 11.
14-4-107. Family violence justice fund - creation - grants from fund - definitions.
- There is hereby established in the state treasury the family violence justice fund, hereafter referred to as the "fund". Pursuant to subsection (3) of this section, the state court administrator is authorized to make grants from the fund directly to qualifying organizations providing civil legal services to indigent residents of the state of Colorado.
-
Grants from the fund shall be used to fund qualifying organizations to provide legal advice, representation, and advocacy for and on behalf of indigent clients who are victims of family violence. Moneys from the fund may be provided for services that include, but are not limited to:
- The provision of direct legal representation to victims of family violence in resolving their civil legal matters and removing impediments to the elimination of family violence. Such representation may include, but need not be limited to, representation in any protection order proceeding; action for dissolution of marriage, legal separation, or declaration of invalidity of marriage; action for dissolution of a civil union, legal separation, or declaration of invalidity of a civil union; paternity action; child custody action; proceeding to establish or enforce child support; administrative hearings; or any other judicial actions in which family violence is an issue or in which legal representation is necessary to protect the interests of a victim of family violence.
- The provision of clinics designed to educate and assist indigent victims of family violence in the proceedings set forth in paragraph (a) of this subsection (2);
- The provision of legal information and advice to victims of family violence, referrals to appropriate persons or agencies, and the provision of emergency assistance in appropriate cases by telephone, electronic communication, or other appropriate means.
-
A qualifying organization seeking to receive a grant from the fund shall submit an application each year to the state court administrator on a form provided by such administrator. The application form shall request any information which the administrator may need in determining the qualifications of the organization for receipt of a grant. Commencing July 1, 1999, and quarterly thereafter, the state court administrator shall distribute grants from the fund, subject to available appropriations, to a qualifying organization for each county or city and county based upon the following formula:
- The total moneys shall be disbursed in proportion to the number of persons living below the poverty line in each county or city and county as determined by the most recent census published by the bureau of the census of the United States department of commerce.
- If there is more than one qualifying organization within a county or city and county, the proportionate share of the fund for such county or city and county disbursed to each such qualifying organization shall be allocated in proportion to the number of indigent family violence clients served by each qualifying organization or its predecessor in the preceding year.
-
- In addition to any appropriation from the general fund, the state court administrator is authorized to accept on behalf of the state any funds, grants, gifts, or donations from any private or public source for the purpose of implementing this section. All private and public funds received through grants, gifts, or donations shall be transmitted to the state treasurer who shall credit the same to the family violence justice fund.
- The moneys in the fund shall be subject to annual appropriation by the general assembly for the direct and indirect costs associated with the administration of this section. The state court administrator of the judicial department, subject to annual appropriation by the general assembly, is authorized to expend moneys appropriated to the department from the fund to qualifying organizations for the purposes described in this section; except that the amount expended for indirect costs associated with the administration of this section shall not exceed three percent of the moneys appropriated to the fund in any fiscal year. All investment earnings derived from the deposit and investment of the moneys in the fund shall be credited to the fund. Any moneys not appropriated shall remain in the fund and shall not be transferred or revert to the general fund of the state at the end of any fiscal year.
(4.5) Notwithstanding any other provision of this section, the state court administrator shall apply the moneys generated from fees collected pursuant to section 13-32-101 (1)(a), (1)(a.5), (1)(b), and (1)(b.5), C.R.S., and transferred pursuant to section 13-32-101 (5)(a)(X) and (5)(b)(II), C.R.S., to grants to qualifying organizations that provide services described in subsection (2) of this section for or on behalf of indigent persons or their families, which persons are married, separated, or divorced or parties to a civil union or an invalidated, legally separated, or dissolved civil union.
-
For purposes of this section:
- "Administrator" means the state court administrator in the state judicial department.
- "Family violence" has the same meaning as "domestic abuse" as set forth in section 13-14-101 (2), C.R.S.
- "Fund" means the family violence justice fund.
- "Indigent" means a person whose income does not exceed one hundred twenty-five percent of the current federal poverty guidelines determined annually by the United States department of health and human services.
- "Protection order" has the same meaning as set forth in section 18-6-803.7 (1)(b.5), C.R.S.
-
"Qualifying organization" means an organization that:
- Provides full service civil legal services to indigent clients;
- Is based in Colorado;
- Is exempt from taxation pursuant to section 501 (c)(3) of the internal revenue code; and
- Obtains more than thirty-three percent of its funding from sources other than grants from the fund.
Source: L. 99: Entire section added, p. 1178, § 5, effective June 2. L. 2003: (2)(a) and (5)(e) amended, p. 1010, § 13, effective July 1. L. 2004: (5)(b) amended, p. 554, § 9, effective July 1. L. 2009: (4.5) added, (SB 09-068), ch. 264, p. 1211, § 6, effective July 1. L. 2010: (3)(a) amended, (HB 10-1422), ch. 419, p. 2069, § 25, effective August 11. L. 2011: (4.5) amended, (HB 11-1303), ch. 264, p. 1153, § 22, effective August 10. L. 2013: (2)(a) and (4.5) amended, (SB 13-011), ch. 49, p. 162, § 12, effective May 1. L. 2014: (5)(e) amended, (HB 14-1363), ch. 302, p. 1263, § 10, effective May 31.
Editor's note: In 2003, subsection (5)(e), as enacted in 1999, was relettered on revision as (5)(f), and subsection (5)(f), as enacted in 1999 and as amended by House Bill 03-1117, was relettered on revision as (5)(e) to put the defined terms in alphabetical order. (For House Bill 03-1117, see L. 2003, p. 1010 .)
Cross references: For the internal revenue code, see the federal "Internal Revenue Code of 1986", title 26 of the United States Code.
DESERTION AND NONSUPPORT
ARTICLE 5 UNIFORM INTERSTATE FAMILY SUPPORT ACT
Editor's note: (1) This article was numbered as article 2 of chapter 43, C.R.S. 1963. The provisions of this article were repealed and reenacted in 1993, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1993, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. Former C.R.S. section numbers prior to 1993 are shown in editor's notes following those sections that were relocated.
(2) The numbering used in this article conforms to the numbering used in the National Uniform Act and may not parallel the numbering found elsewhere in Colorado Revised Statutes.
Law reviews: For article, "The Colorado Uniform Interstate Family Support Act", see 23 Colo. Law. 2535 (Nov. 1994); for article, "Interstate Family Law Jurisdiction: Simplifying Complex Questions", see 31 Colo. Law. 77 (Sept. 2002); for article, "Colorado's Uniform Interstate Family Support Act: 2004 Changes and Clarifications", see 33 Colo. Law. 99 (Nov. 2004).
Section
PREFATORY NOTE
I. History of Uniform Family Support Acts
- URESA and RURESA
- UIFSA (1992) (1996)
- UIFSA (2001)
- The New Hague Maintenance Convention
In 1950 the National Conference of Commissioners on Uniform State Laws (NCCUSL), now more commonly referred to as the Uniform Law Commission (ULC), began a series of uniform acts dealing with cases involving establishment, enforcement, and modification of orders for "any duty of support" across state lines. This evolving process started with a revolutionary idea entitled the Uniform Reciprocal Enforcement of Support Act (URESA), promulgated in 1950, and amended in 1952 and 1958. Further amendments in 1968 were so significant that the act was renamed the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). Ultimately, all the states enacted one or more versions of the reciprocal support enforcement acts. A comprehensive history of the creation process from 1950 through 1968 is provided by William J. Brockelbank & Felix Infausto, Interstate Enforcement of Family Support (Bobbs-Merrill Co., 2d ed. 1971). As with most revolutions, without it subsequent development would not have been possible.
By 1988, however, problems had arisen regarding the application of RURESA in practice. After four iterations that lasted over four decades, revisiting the subject was deemed necessary. A drafting committee began to prepare amendments for RURESA, but the task proved more formidable than expected. The result was the promulgation of the Uniform Interstate Family Support Act, UIFSA (1992), which was designed to serve as a complete replacement for URESA and RURESA. In 1993 Arkansas and Texas were the first to enact the new act, and within three years thirty-five states had adopted it.
The year 1996 was an eventful one for UIFSA. First, a drafting committee was convened in spring 1996 in response to requests from representatives of employer groups for specific statutory directions regarding interstate child-support income withholding orders. Second, the child-support community (especially the state programs funded under title IV-D of the Social Security Act) requested a substantive and procedural review. As a result, the NCCUSL at its annual conference in July adopted significant amendments and promulgated UIFSA (1996). Less than one month later, the U.S. Congress assured that nationwide acceptance of the amended Act was virtually certain. In the "welfare reform" legislation passed in August 1996, officially known as the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), the enactment of UIFSA, as amended, was mandated as a condition of state eligibility for the federal funding of child support enforcement and even under exigent circumstances to continued receipt of subsidies for TANF (Temporary Assistance for Needy Families), as follows:
Sec. 321. Adoption of Uniform State Laws (42 U.S.C. § 666) is amended by adding at the end the following new subsection:
(f) Uniform Interstate Family Support Act. In order to satisfy (42 U.S.C. § 654(20)(A)), on and after January 1, 1998, each state must have in effect the Uniform Interstate Family Support Act, as approved by the American Bar Association on February 9, 1993, together with any amendments officially adopted before January 1, 1998, by the National Conference of Commissioners on Uniform State Laws.
Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), Pub. L. 104-193, 110 Stat. 2105 (1996), as amended by the Welfare Reform Technical Corrections Act of 1997.
In accordance with this "federal mandate," all states enacted UIFSA (1996).
In 2000 the child-support community again requested that the act be reviewed and amended as appropriate in the light of the years of experience with the 1992 and 1996 versions. Further, beginning in 1993 there had been an extraordinary amount of comprehensive training on the act by the child-support enforcement agencies throughout the nation and associated agencies and organizations of those agencies, e.g., U.S. Department of Health and Human Services (HHS), Office of Child Support Enforcement (OCSE); National Child Support Enforcement Association (NCSEA); Eastern Regional Interstate Child Support Association (ERICSA); and Western Interstate Child Support Enforcement Council (WICSEC). A significant consequence of this attention was that the provisions of UIFSA were far more familiar to those who administered it than ever was true of its predecessor acts, URESA and RURESA.
The drafting committee meeting in 2001 led to several substantive and procedural amendments, which clarified and extended the act without making any fundamental change in the earlier policies and procedures. The widespread acceptance of UIFSA has been due primarily to the fact that representatives of the child support enforcement community mentioned above participated actively in the drafting of every version of the act, including UIFSA (2008).
When Congress mandated that UIFSA (1996) must be in place in all states by 1998, most interested parties viewed that action as an unalloyed benefit for the promulgation of the uniform act. Although all states promptly adopted UIFSA (1996), in retrospect, the federal action became a mixed blessing when it partially froze further development of the act. Through the development of consecutively promulgated versions of the act, i.e. , UIFSA (2001) and UIFSA (2008), UIFSA (1996) was withdrawn by NCCUSL as being no longer appropriate for enactment. The federal mandate, however, remains and as of January 1, 2015, UIFSA (1996) was in force in twenty five (25) states. The federal Office of Child Support Enforcement (OCSE) routinely granted waivers to any state requesting authority to enact UIFSA (2001), or, with a deferred effective date, UIFSA (2008). Using the waiver authority, as of January 1, 2015, seventeen states had enacted UIFSA (2001), and twelve states had approved UIFSA (2008), contingent upon the United States' ratification of the 2007 Convention. The current expectation is that all states, or at least a substantial majority of the remaining states will enact this version, UIFSA (2008), by the end of 2015.
For comprehensive discussions of many of the events described above, see Uniform Interstate Family Support Act, 9 Part IB U.L.A. 159, 291, 471 (2005); Symposium on International Enforcement of Child Support, 43 Fam. L.Q. No. 1, Spring 2009 (1-160 pp., John J. Sampson issue editor); John J. Sampson and Barry J. Brooks, Uniform Interstate Family Support Act (2001) with Prefatory Note and Comments (with Still More Unofficial Annotations), 36 Fam. L.Q. 329 (2002); John J. Sampson, Uniform Interstate Family Support Act (1996), Statutory Text, Prefatory Note, and Commissioners Comments (with More Unofficial Annotations), 32 Fam. L.Q. 385 (1998); John J. Sampson, Uniform Interstate Family Support Act with Unofficial Annotations, 27 Fam. L.Q. 91 (1993).
Case law developments are found in Kurtis D. Kemper, Construction and Application of Uniform Interstate Family Support Act, 18 A.L.R. 6th 97 (originally published in 2001); Kurtis D. Kemper, Validity, Construction, and Application of Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C.A. § 1738B State Cases, 18 A.L.R. 6th 97 (originally published in 2006).
In sum, the original act, UIFSA (1992), was followed by two sets of amendments in 1996, and 2001. Throughout, the basic principles have remained constant, while the details have been refined by experience in the field. This version is the third set of significant amendments to the act, referred to in these comments as UIFSA (2008).
II. International Maintenance Orders
A. URESA and RURESA; Minimal Attention to International Orders
URESA (1950, 1952, and 1958) did not take into account enforcement of child-support or spousal-support orders that involved a foreign country. "State" was defined as one of the fifty states, the District of Columbia, or Puerto Rico. The 1958 amendments to URESA expanded the definition to "any state, territory or possession of the United States and the District of Columbia in which this or a substantially reciprocal law has been enacted."
RURESA (1968) made a significant change to the complete absence of attention to international support orders by expanding the definition of "state" to "any foreign jurisdiction in which this or substantially similar reciprocal law is in effect." Contemporaneous commentary indicated that the beneficiary of this amendment would be Canada, or at least certain Canadian provinces. The thought was expressed that the United States Department of State might negotiate a treaty with Canada, or that under a redefinition of the term "state" several Canadian provinces would be included as jurisdictions that would reciprocally enforce U.S. support orders.
B. UIFSA (1992) (1996); Minor Changes in Treatment of International Orders
The basic approach of UIFSA (1992) was to maintain the RURESA provision quoted above with the following minor modification: "State . . . includes a foreign jurisdiction that has established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under this [Act]." UIFSA (1996) continued the basic provisions by adding that the foreign jurisdiction might have enacted a law that was also "substantially similar" to URESA or RURESA. Further, an amendment to Section 304 recognized that courts in Canadian provinces entered provisional orders for support to accompany their outgoing requests for establishment and enforcement, and required a provisional order from a state of the United States in order to establish a support order in Canada.
C. UIFSA (2001); Bilateral Agreements Recognized
In August 1996 PRWORA was enacted just three weeks after the promulgation of UIFSA (1996), which continued the approach of RURESA and UIFSA (1992), i.e., define "state" as including a foreign country with a "substantially similar" law to UIFSA. Indeed, this approach remains the law on the statute books of those U.S. jurisdictions that continue UIFSA (1996) in effect. UIFSA (2001) deleted the reference to a foreign country having a "substantially similar law" to URESA or RURESA. Although the revised act did specifically recognize the existence of bilateral agreements between the United States and foreign countries or their political subdivisions, UIFSA (2008) is specifically designed to accommodate U.S. domestic law to international family support orders, especially those resulting under the new Hague Convention of November 23, 2007.
In short, the attention paid in the uniform support acts to issues involving foreign support orders initially was relatively limited until the advent of UIFSA (2001). Previously, in 1996 PRWORA tied the significant federal subsidy for child-support enforcement to the universal enactment of UIFSA (1996), and also laid the groundwork for greatly increased federal activity for reaching bilateral agreements on child support enforcement with foreign countries. The federal act authorized the Secretary of State, with the concurrence of the Secretary of Health and Human Services, to enter into international agreements with foreign reciprocating countries with support enforcement procedures substantially in conformity with such procedures in the United States. Individual U.S. states were also encouraged to enter into reciprocal arrangements with the foreign jurisdictions with which they had the greatest number of international cases.
In response, the U.S. State Department formed teams of negotiators to provide for bilateral agreements with a variety of foreign countries. Between 1998 and 2008, the United States entered into bilateral agreements with thirteen nations and eleven Canadian provinces (the federal government in Canada lacks jurisdiction over child-support orders). See http://www.acf.hhs.gov/programs/cse/ international/index.html.
To accommodate the new world of bilateral orders on the federal level, UIFSA (2001) redefined "state" to encompass foreign countries with bilateral agreements with the United States. Despite repeated requests to Congress to mandate adoption of that version in order to facilitate increased international activity in child-support enforcement, no congressional action was taken through the end of 2008; see Section 102(26), infra , for the text of UIFSA (2001) and the entirely new approach in UIFSA (2008).
As of June 1, 2003, there were several child support enforcement agreements among countries. One widely accepted agreement, which is largely hortatory and without practical effect, was sponsored by the United Nations in 1956 and referred to as the New York Convention. In addition, there are four agreements promulgated by The Hague Conference on Private International Law (HccH), two covering enforcement of child-support orders in 1958 and maintenance orders in 1973, and two dealing with applicable law in 1956 and 1973 (a civil law concept). These conventions operate primarily between European nations, and came to be viewed by HccH as out-of-date and relatively ineffective. In addition, there are a welter of regional agreements regarding enforcement of family maintenance orders. The United States is not a party to any of these multilateral agreements.
Beginning in June 2003, and continuing through November 2007, more than 70 countries met in The Hague, Netherlands, in five separate negotiating sessions to forge a new Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.
The United States delegation, headed by the U.S. State Department and including members from OCSE and other experts, was a crucial participant throughout the term of negotiations. It was clearly a goal of all the parties engaging in the negotiations that the United States be an active party and ultimately adopt the Convention.
As a first step, the Convention was signed by the United States at The Hague, Netherlands, on November 23, 2007. In context, this initial signature represents a commitment by the executive branch of the federal government to make a good faith effort to bring the Convention into force. The Senate has given its advice and consent to the Convention. When it is signed by the President, and the appropriate documents are filed in The Hague, the federal preemption of the issue via the treaty clause will be sufficient to make the Convention "the law of the land." See U.S. Const. art. VI. cl. 2. However, because this multilateral treaty is not self-executing, additional federal or state statutory enactments are necessary to enable the treaty and make it readily accessible to bench and bar. Because establishment, enforcement, and modification of family support are basically matters of state law, from the perspective of the Uniform Law Commission the vehicle for the acceptance into force of the new Convention is a revision of UIFSA (2001), hereafter called UIFSA (2008). In time, it is anticipated the new Hague Maintenance Convention will achieve a high level of integration with many other countries.
III. Drafting Principles for UIFSA (2008)
The basic principles underlying the drafting of UIFSA (2008) anticipated a strictly limited revision of the act in order to integrate the appropriate provisions of the new Convention into state law. Because UIFSA (2001) had such a wide influence on the text of the new Convention, in very many instances the principles, and sometimes almost the exact text, of the Convention were already contained in UIFSA (2001). The clear drafting goal was to integrate the Convention into state law, and not to revise UIFSA (2001) in a substantive manner. Most frequently the amendment to the existing text was merely to add "or a foreign country" to the directives about how a "tribunal of this state" should deal with an order or another action of a "state." Correspondingly, the definition of "state" no longer contains the legal fiction that a foreign country is a state of the United States.
Similarly, a significant portion of the language of the Convention need not be included in state law because that text speaks to the "Contracting States," that is, to the countries in which the Convention will come into force. A substantial percentage of the articles in the Convention are directed to the agreement between nation states or their political subdivisions, which do not implicate state tribunals. A majority of the provisions, however, do speak to the "competent authorities," which means to those tribunals charged with the obligation of applying the Convention to actual support orders. In sum, with relatively minimal amendments, the text of UIFSA (2008) combines the principles of UIFSA and the Convention with the required actions of a state tribunal to put the Convention into effect.
There are some instances in which the text of UIFSA (2008) and the Convention differ in a manner that cannot be reconciled by fiat. On these occasions it is necessary to accommodate the Convention language to state law in order to avoid conflict between the Convention and the uniform state law. A choice had to be made; either substantially amend the text of UIFSA (2001), or create an independent set of rules to accommodate the differences between UIFSA and the Convention. The latter was the preferred decision. An all-new Article 7 constitutes a stand-alone portion of the act designed to direct a "tribunal of this state" on limited special practices and handling deemed to be necessary for establishing or enforcing a Convention support order. This decision was based on the conclusion that a limited number of specialized rules for Convention orders would result in a simpler, smoother transition than attempting to integrate new rules into the millions of existing child- support orders.
UIFSA (2008) also may supply answers to some of the questions that the Convention leaves unresolved. This is particularly apt with regard to modification of existing orders when parties have moved from the issuing state or foreign country, or other factual circumstances have changed significantly. Regarding modification of orders, the Convention has only limited application, while UIFSA makes modification the subject of significant statutory effect. See §§ 609-16.
In sum, UIFSA (2008) constitutes a limited, rather than comprehensive, revision of the act. It is designed to integrate the Convention into state law, and not to amend UIFSA (2001) in any significant manner. The drafting principles are relatively simple:
- integrate the requirements of the Convention into the current text of UIFSA articles 1 through 6 by adding "or a foreign country" when the desired actions and goals of both acts are congruent;
- adapt the language of the Convention to the current text of UIFSA articles 1 through 6 in order to make that language more comprehensible to the American bench and bar;
- draft a stand-alone article in UIFSA to direct a "tribunal of this state" on do's and don'ts unique to the Convention support orders containing issues only applicable under the Convention; and,
- omit the Convention text that need not be included in state law because it speaks only to "Contracting States," i.e., the United States and the other Convention countries.
The function of the comments to the act is not to serve as an annotated version of UIFSA (2008), but rather to provide the history and process involved in the drafting of the four iterations of a uniform act, one of which is in force in every jurisdiction of the United States. Other than key constitutional cases, most of the citations found in previous comments to earlier iterations of the act have been omitted.
IV. Federal Action Implicating UIFSA (2008)
The usual course for treaties entered into by the United States pursuant to the treaty power, U.S. Const. art. II, § 2, cl. 2, and which are not "self-executing," is for the treaty to be implemented through federal legislation. The states are, of course, required to comply with the treaty and the federal legislation, but, as noted above, the establishment, enforcement, and modification of family support orders are basically matters of state law. As UIFSA is the familiar and widely used tool for support determinations in cross-border situations, the Uniform Law Commission (ULC), in close consultation with the Department of State and the Department of Health and Human Service's Office of Child Support Enforcement (OCSE), incorporated applicable provisions of the Hague Maintenance Convention of November 23, 2007 into state law through amendments to UIFSA, now UIFSA (2008). In fact, the United States' negotiations team at The Hague included ULC representatives, and the 2007 treaty, in many important respects, parallels the UIFSA model of inter- jurisdictional cooperation.
While it includes specific new features for international case processing, UIFSA (2008) incorporates substantial provisions of state law which will already be familiar to attorneys, courts, support enforcement agencies, and litigants. Congress, which funds state child support programs through title IV-D of the Social Security Act has, since 1996, deemed it appropriate to require all states to adopt UIFSA as a condition for the continued receipt of federal funds. Adoption of UIFSA (2008) by the states, will ensure uniformity in implementation of the treaty throughout the country and will enable the United States to be in compliance with the Convention.
Obviously, federal action is also required, both to ratify the treaty and bring it into force. With respect to the Convention, federal legislation was necessary to implement parts of the Convention which do not directly implicate state tribunals, such as the provisions of Convention Chs. II and III dealing with Central Authorities, use of the Federal Parent Locator Service, and collection of past- due support in international cases by offset of federal tax refunds.
The United States signed the treaty on November 23, 2007, signifying its intention to make good faith efforts to have the treaty adopted and implemented in this country. On September 29, 2010 the United States Senate gave its advice and consent to ratification of the treaty. Federal legislation which included provisions pertaining to the treaty was passed by both the House and Senate and was signed by the President on September 29, 2014, as Public Law 113-183. This legislation requires all states to adopt UIFSA (2008). The law further requires that UIFSA (2008) be in effect in each state no later "than the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act." If a state has a 2-year legislative session, "each year of the session shall be deemed to be a separate regular session of the State legislature." All states have regular legislative sessions during 2015 and, thus, all states must enact UIFSA (2008) in 2015.
Immediately following enactment of P.L. 113-183, the Commissioner of OCSE signed a policy Action Transmittal directed to all State Agencies Administering Child Support Plans under Title IV-D of the Social Security Act. This transmittal reiterates the legislative requirement that each state must have in effect the Uniform Interstate Family Support Act, "including any amendments adopted as of September 30, 2008." The transmittal is set forth in full below.
Adoption of UIFSA(2008) by the states is not only essential to the continued federal funding of state child support programs but is key to the United States' showing of good faith implementation of the Convention and the entry into force of the Convention in this country. That implementation will help assure that American support orders are fully and expeditiously accepted and enforced in other countries. At the beginning of 2015, thirty-two countries had already ratified, acceded to the Convention, or were bound by a Regional Economic Integration Organization mandate (i.e. the European Union's means of implementation of the Convention).
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES
OFFICE OF CHILD SUPPORT ENFORCEMENT
ACTION TRANSMITTAL
AT-14-11
DATE: October 9, 2014
TO: State Agencies Administering Child Support Plans under Title IV-D of the Social Security Act and Other Interested Individuals
SUBJECT: P.L. 113-183 UIFSA 2008 Enactment
On September 29, 2014 President Obama signed Public Law (P.L.) 113-183, the Preventing Sex Trafficking and Strengthening Families Act. This law amends section 466(f) of the Social Security Act, requiring all states to enact any amendments to the Uniform Interstate Family Support Act "officially adopted as of September 30, 2008 by the National Conference of Commissioners on Uniform State Laws" (referred to as UIFSA 2008). Among other changes, the UIFSA 2008 amendments integrate the appropriate provisions of The Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, which was adopted at the Hague Conference on Private International Law on November 23, 2007, referred to as the 2007 Family Maintenance Convention.
Section 301(f)(3)(A) of P.L. 113-183 requires that UIFSA 2008 must be in effect in every state "no later than the effective date of laws enacted by the legislature of the State implementing such paragraph, but in no event later than the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act." If a state has a 2-year legislative session, "each year of the session shall be deemed to be a separate regular session of the State legislature."
In 2008, after the National Conference of Commissioners on Uniform State Laws adopted the UIFSA 2008 amendments, several states asked OCSE if their state legislatures could enact UIFSA 2008. At that time, section 466(f) of the Social Security Act required states to adopt UIFSA 1996, a previous version to UIFSA 2008. OCSE issued DCL-08-41, which permitted states to enact UIFSA 2008 verbatim with a provision that the effective date of its enactment be delayed until the 2007 Family Maintenance Convention is ratified and the United States deposits its instrument of ratification. States that chose to follow this process did not need to request an exemption from OCSE. Eight states passed UIFSA 2008 using the effective date language described in DCL-08-41.
Due to the specific requirement in P.L. 113-183 that states enact UIFSA 2008 in their next state legislative session, OCSE rescinds DCL-08-41. The eight states that enacted UIFSA 2008 with a delayed implementation date must take the necessary legislative or administrative steps for UIFSA 2008 to be effective as directed in P.L. 113-183.
Now that the President has signed P.L. 113-183, the following steps must occur before the 2007 Family Maintenance convention can enter into force for the United States.
o All states must enact UIFSA 2008 verbatim by the effective date noted in P.L. 113-183. Where UIFSA 2008 has bracketed language, states may use terminology appropriate under state law. In addition, P.L. 113-183 requires states to make minor revisions to the state plan which OCSE will address in forthcoming guidance.
o The President must sign the instrument of ratification.
o Once these activities are completed, the United States will be able to deposit its instrument of ratification with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, which is the depositary for the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.
It is important to note that, once UIFSA 2008 is in effect in your state, international cases will not be processed under Article 7 of UIFSA 2008 until the 2007 Family Maintenance Convention enters into force for the United States. Once this occurs, Article 7 of UIFSA 2008 will be in effect for all cases transmitted and received under the 2007 Family Maintenance Convention.
OCSE expresses our sincere thanks to the entire child support community for the collaborative and monumental effort taken to reach this important milestone. We look forward to working together to enact UIFSA 2008 in all states, and to implement the 2007 Family Maintenance Convention in the United States.
Vicki Turetsky
Commissioner, Office of Child Support Enforcement
PART 1 GENERAL PROVISIONS
Editor's note: (1) This article was repealed and reenacted in 1993, and this part 1 was subsequently amended with relocations in 2003, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this part 1 prior to 2003, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume and the editor's note following the article heading. Former C.R.S. section numbers prior to 2003 are shown in editor's notes following those sections that were relocated.
(2) In 1961, this article was enacted as the Uniform Reciprocal Enforcement of Support Act. It was replaced by the Revised Uniform Reciprocal Enforcement of Support Act in 1971, which repealed and reenacted the act and was in effect until 1993 when it was repealed and reenacted into the Uniform Interstate Family Support Act as it existed until 2003 when the article was amended. For the Uniform Reciprocal Enforcement of Support Act, see article 2 of chapter 43, C.R.S. 1963 ( L. 61, p. 356 ). For the Revised Uniform Reciprocal Enforcement of Support Act, see article 2 of chapter 43, C.R.S. 1963 or article 5 of title 14, C.R.S. 1973 ( L. 71, p. 515 ).
14-5-101. Short title.
This article shall be known and may be cited as the "Uniform Interstate Family Support Act".
Source: L. 2003: Entire part amended with relocations, p. 1241, § 2, effective July 1, 2004.
Editor's note: In 2003, the former § 14-5-101 was relocated to § 14-5-102.
14-5-102. Definitions.
In this article:
- "Child" means an individual, whether over or under the age of majority, who is or is alleged to be owed a duty of support by the individual's parent or who is or is alleged to be the beneficiary of a support order directed to the parent.
-
"Child support order" means a support order for a child, including a child who has attained the age of majority under the law of the issuing state or foreign country.
(2.5) "Convention" means the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007.
-
"Duty of support" means an obligation imposed or imposable by law to provide support for a child, spouse, or former spouse, including an unsatisfied obligation to provide support.
(3.3) "Foreign country" means a country, including a political subdivision thereof, other than the United States, that authorizes the issuance of support orders and:
(3.4) "Foreign support order" means a support order of a foreign tribunal.
(3.5) "Foreign tribunal" means a court, administrative agency, or quasi-judicial entity of a foreign country which is authorized to establish, enforce, or modify support orders or to determine parentage of a child. The term includes a competent authority under the Convention.
- Which has been declared under the law of the United States to be a foreign reciprocating country;
- Which has established a reciprocal arrangement for child support with this state as provided in section 14-5-308;
- Which has enacted a law or established procedures for the issuance and enforcement of support orders which are substantially similar to the procedures under this article; or
- In which the convention is in force with respect to the United States.
- Request determination of the controlling child support order.
- "Home state" means the state or foreign country in which a child lived with a parent or a person acting as parent for at least six consecutive months immediately preceding the time of filing of a petition or comparable pleading for support and, if a child is less than six months old, the state or foreign country in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six-month or other period.
- "Income" includes earnings or other periodic entitlements to money from any source and any other property subject to withholding for support under the law of this state.
- "Income-withholding order" means an order or other legal process directed to an obligor's employer or other debtor, as defined by the income-withholding law of this state, to withhold support from the income of the obligor.
- Repealed.
-
"Initiating tribunal" means the tribunal of a state or foreign country from which a petition or comparable pleading is forwarded or in which a petition or comparable pleading is filed for forwarding to another state or foreign country.
(8.5) "Issuing foreign country" means the foreign country in which a tribunal issues a support order or a judgment determining parentage of a child.
- "Issuing state" means the state in which a tribunal issues a support order or a judgment determining parentage of a child.
- "Issuing tribunal" means the tribunal of a state or foreign country that issues a support order or a judgment determining parentage of a child.
- "Law" includes decisional and statutory law and rules and regulations having the force of law.
-
"Obligee" means:
(A) An individual to whom a duty of support is or is alleged to be owed or in whose favor a support order or a judgment determining parentage of a child has been issued;
(B) A foreign country, state, or political subdivision of a state to which the rights under a duty of support or support order have been assigned or which has independent claims based on financial assistance provided to an individual obligee in place of child support;
(C) An individual seeking a judgment determining parentage of the individual's child; or
(D) A person that is a creditor in a proceeding under part 7 of this article.
-
"Obligor" means an individual, or the estate of a decedent that:
(A) Owes or is alleged to owe a duty of support;
(B) Is alleged but has not been adjudicated to be a parent of a child;
(C) Is liable under a support order; or
(D) Is a debtor in a proceeding under part 7 of this article.
(13.5) "Outside this state" means a location in another state or a country other than the United States, whether or not the country is a foreign country.
- "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
- "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
- "Register" means to file in a tribunal of this state a support order or judgment determining parentage of a child issued in another state or a foreign country.
- "Registering tribunal" means a tribunal in which a support order or judgment determining parentage of a child is registered.
- "Responding state" means a state in which a petition or comparable pleading for support or to determine parentage of a child is filed or to which a petition or comparable pleading is forwarded for filing from another state or a foreign country.
- "Responding tribunal" means the authorized tribunal in a responding state or foreign country.
- "Spousal-support order" means a support order for a spouse or former spouse of the obligor.
- "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession under the jurisdiction of the United States. The term includes an Indian nation or tribe.
-
"Support enforcement agency" means a public official, governmental entity, or private agency authorized to:
(A) Seek enforcement of support orders or laws relating to the duty of support;
(B) Seek establishment or modification of child support;
(C) Request determination of parentage of a child;
(D) Attempt to locate obligors or their assets; or
- "Support order" means a judgment, decree, order, decision, or directive, whether temporary, final, or subject to modification, issued in a state or foreign country for the benefit of a child, a spouse, or a former spouse, which provides for monetary support, health care, arrearages, retroactive support, or reimbursement for financial assistance provided to an individual obligee in place of child support. The term may include related costs and fees, interest, income withholding, automatic adjustment, reasonable attorney's fees, and other relief.
- "Tribunal" means a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage of a child.
Source: L. 2003: Entire part amended with relocations, p. 1241, § 2, effective July 1, 2004. L. 2015: (2), (4), (8), (9), (10), (12), (13), (14), (16) to (19), and (21) to (24) amended, (2.5), (3.3) to (3.5), (8.5), and (13.5) added, and (7) repealed, (HB 15-1198), ch. 173, p. 543, § 1, effective July 1.
Editor's note: In 2003, this section was formerly numbered as § 14-5-101, and the former § 14-5-102 was relocated to § 14-5-103.
COMMENT
The terms defined in UIFSA receive a major makeover in the now-realized expectation that the Convention will enter into force in the United States at a future time. Six definitions of terms are completely new, sixteen existing definitions are amended to a greater or lesser degree, seven definitions remain basically untouched albeit six of these are renumbered, and one term is deleted because it no longer appears in the act.
Many crucial definitions continue to be left to local law. For example, the definitions provided by subsections (1) "child," and (2) "child-support order," refer to "the age of majority" without further elaboration. The exact age at which a child becomes an adult for different purposes is a matter for the law of each state or foreign country as is the age at which a parent's duty to furnish child support terminates. Similarly, a wide variety of other terms of art are implicitly left to state law. The new Convention provides a more explicit definition of "child" that is entirely consistent with the laws of all states.
There is a divergence of opinion among the several states regarding the appropriate age for termination of child support. The overwhelming number of states set ages 18 (legal adulthood for most purposes), or 19, or one of those two ages and high-school graduation, whichever comes later. Relatively few states have retained the formerly popular age of 21. And, some states extend the support obligation past age 21 if the person to be supported is engaged in higher education. Allegedly some support enforcement agencies and some tribunals have been reluctant to enforce an ongoing child support obligation past age 21, but under UIFSA it is the law of the issuing state or foreign country that makes the determination of the appropriate age for termination of support from an obligor. Because the order has been established with personal jurisdiction over the parties, it is fully enforceable under the terms of the act.
Under the terms of the Convention, the standard obligation of a responding tribunal to enforce a child-support order is for a person "under the age of 21 years." See Convention art. 2. Scope. However, a contracting nation may make a reservation to limit enforcement of a child- support order to "persons who have not attained the age of 18 years." Id. This possibility will not affect this act domestically because the United States does not intend to make such a reservation. Currently states will enforce another jurisdiction's order even if such an order could not have been obtained in the responding state because the child was over 18. There is no requirement to establish an order for a child over the age of 18 if that cannot be done under the local jurisdiction's law.
Subsection (3) "Convention," identifies the Hague Maintenance Convention, the basis on which UIFSA (2008) was drafted. The text of the Convention may be accessed on the website of the Hague Convention on Private International Law, www.hcch.net/index. As noted above, the Convention was the result of negotiations involving more than 70 foreign nations or, in some instances political subdivisions of a foreign nation, conducted in a series of meetings from May 2003 to November 2007.
Subsection (4) "Duty of support," means the legal obligation to provide support, whether or not that duty has been the subject of an order by a tribunal. This broad definition includes both prospective and retrospective obligations to the extent they are imposed by the relevant state law.
The definitions in subsections (5) "foreign country," (6) "foreign support order," and (7) "foreign tribunal," are all new to UIFSA, and must be read in conjunction with the prior and the new definition of "state," now in subsection (26). Formerly, under certain circumstances a foreign country or political subdivision was declared to be a "state." Defining a foreign country or a political subdivision thereof, e.g., a Canadian province, as a "state" may be traced back to 1968, where this approach first appeared in the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). That fiction created confusion because a foreign support order is not entitled to full faith and credit. Indeed, such orders of the sister states of the United States were only relatively recently accorded that treatment after congressional action in 1994 with the advent of the Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28. U.S.C. § 1738 B. Thus, constitutional analysis is not required for enforcement of foreign support orders; only state statutory issues are involved.
The term "foreign judgment" is used only once in UIFSA (1996) and (2001) in a context that clearly intends to mean "from a sister state." If an international construction is intended, the text in UIFSA (2001) is uniformly "foreign country or political subdivision." The new definitions in UIFSA (2008) are fine-tuned to avoid ambiguity in order to ensure that "foreign" is used strictly to identify international proceedings and orders.
Subsection (5) requires additional careful reading; under the act "foreign country" by no means includes all foreign nations. See Section 102(5)(A)-(D). Countries identified by three of the four subdivisions are reasonably ascertainable. The list of reciprocating countries that have negotiated an executive agreement with the United States as described in subdivision (5)(A), known as bilateral agreements, is found on the website of the federal Office of Child Support Enforcement (OCSE) at http://www. acf.hhs.gov/programs/cse/international/index.html.
The countries described in Section 102(5)(B) have entered into an agreement with the forum state, which presumptively is known to officials of that state. A combined list of all such agreements of all states is not readily available.
Countries subject to Section 102(5)(C) theoretically could require individualized determinations on a case-by-case basis. An alternative might be for each state to create an efficient method for identifying foreign countries whose laws are "substantially similar" to UIFSA. On the other hand, the "substantially similar" test to measure the laws of foreign nations has been around since 1968 without eliciting much controversy.
In the future, assuming that there will be a number of countries with the Convention in force with the United States under Section 102(5)(D), the list of those countries will be well publicized.
Finally, there are very many foreign nations that do not, and will not, fit any of the definitions of "foreign country" established in the act. At present, there are 192 member states in the United Nations. Recognition and enforcement of support orders from nations that do not meet the definition of "foreign country" may be enforceable under the doctrine of comity. See Section 104.
Subsections (6) "foreign support order," (7) "foreign tribunal," and (12) "issuing foreign country" set down parallel tracks for a foreign support order, foreign tribunal, and foreign issuing country throughout the act.
Subsection (17) "obligor," and subsection (16) "obligee," are denominated in the Convention as "debtor" and "creditor." The terms inherently contain the legal obligation to pay or receive support, and implicitly refer to the individuals with a duty to support a child. "Obligor" includes an individual who is alleged to owe a duty of support as well as a person whose obligation has previously been determined. The one-order system of UIFSA can succeed only if the respective obligations of support are adjusted as the physical possession of a child changes between parents or involves a third-party caretaker. This must be accomplished in the context of modification, and not by the creation of multiple orders attempting to reflect each changing custody scenario. Obviously this issue is of concern not only to interstate and international child-support orders, but applies to intrastate orders as well.
Subsection (18) "outside this state," requires careful reading. This phrase is used in the act when the application of the provision is to be as broad as possible. Rather than limit the application of certain provisions of the act to other states, foreign countries as defined in subsection (5), or even countries whose orders are entitled to comity under Section 104, all nations and political subdivisions are truly "outside this state." For example, that term is found in Sections 316 through 18, which allow a tribunal of this state to accept information or assistance from everywhere in the world (in the court's discretion as to its effect).
The definitions in subsections (23) "responding state," and (24) "responding tribunal," accommodate the direct filing of a petition under UIFSA without the intervention of an initiating tribunal. Both definitions acknowledge the possibility that there may be a responding state and a responding tribunal in a situation where there is no initiating tribunal. Under current practice, the initial application for services most often will be generated by a support enforcement agency or a central authority of a foreign country and sent to the appropriate support enforcement agency in the responding state.
As discussed above in connection with subsections (5) through (7), the amended definition in subsection (26) "state," eliminates the legal fiction that a foreign country can be a state of the United States, and clarifies and implements the purpose of the act to enforce an international support order under state law. In UIFSA (2008), the term clearly is intended to refer only to a state of the United States or to other designated political entities subject to federal law.
The vast bulk of child support establishment, enforcement, and modification in the United States is performed by the state Title IV-D agencies. See Part IV-D, Social Security Act, 42 U.S.C. § 651 et seq. Subsection (27) "support enforcement agency," includes not only those entities, but also any other state or local governmental entities, or private agencies acting under contract with such agencies, charged with establishing or enforcing child support. A private agency falls within the definition of a support enforcement agency only as an outsource of a Title IV-D agency or specifically identified as such under Section 103.
Subsection (28) "support order" is another definition that requires more careful reading than might be immediately clear. Virtually every financial aspect of a support order regarding child support or spousal support is covered. Throughout the act "support order" means both "child support" and "spousal support." "Child support" is used when the provision applies only to support for a child. The single provision applicable solely to spousal support is Section 211. Other forms of support that might be classified as "family support," are not dealt with by UIFSA.
Subsection (29) "tribunal," takes into account that a number of states have delegated various aspects of child-support establishment and enforcement to quasi-judicial bodies and administrative agencies. The term accounts for the breadth of state variations in dealing with support orders. This usage is standard in the child-support enforcement community; private practitioners who, only rarely, are involved in such cases may still find the term unfamiliar.
ANNOTATION
Annotator's note: Since § 14-5-102 is similar to § 14-5-101 as it existed prior to the 2003 amendment to part 2 of article 5 of title 14, which resulted in the relocation of provisions, relevant cases construing that provision have been included in the annotations to this section.
Applied in Gruber v. Wallner, 198 Colo. 235 , 598 P.2d 135 (1979); People ex rel. Meveren v. District Court, 638 P.2d 1371 ( Colo. 1982 ); Dewar v. LeNard, 653 P.2d 82 (Colo. App. 1982).
14-5-103. State tribunals and support enforcement agency.
- The court and the administrative agency are the tribunals of this state.
- The county and state child support services agencies are the support enforcement agencies of this state.
Source: L. 2003: Entire part amended with relocations, p. 1243, § 2, effective July 1, 2004. L. 2015: Entire section amended, (HB 15-1198), ch. 173, p. 546, § 2, effective July 1.
Editor's note: In 2003, this section was formerly numbered as § 14-5-102, and the former § 14-5-103 was relocated to § 14-5-104.
COMMENT
Subsection (a) provides for the identification of the tribunal or tribunals to be charged with the application of this act.
Subsection (b) performs the same function for the support enforcement agency or agencies. By its terms it indicates the legislature may designate more than one entity as authorized to enforce a support order, including a private agency. To clarify, federal law and regulations require that each state designate a "single and separate organizational unit" as the state agency that is charged with administration of the state plan and is authorized, and funded under Title IV-D of the Social Security Act. Known throughout the United States as the as the "IV-D agency," it may delegate any of its functions to another state or local agency or may purchase services from any person or private agency. The IV-D agency, however, retains responsibility for ensuring compliance with the Title IV- D state plan. Moreover, by virtue of the receipt of a federal subsidy, the agency is subject to federal regulations. The legislature may also decide to provide services unrelated to, or not funded by the Title IV-D system. For example, the state legislature could identify (and fund) a private agency authorized to enforce a spousal-support order not involving child support, or could fund a public defender system to provide counsel for indigent defendants in IV-D cases.
14-5-104. Remedies cumulative.
- Remedies provided by this article are cumulative and do not affect the availability of remedies under other law or the recognition of a foreign support order on the basis of comity.
-
This article does not:
- Provide the exclusive method of establishing or enforcing a support order under the laws of this state; or
- Grant a tribunal of this state jurisdiction to render judgment or issue an order relating to child custody or visitation in a proceeding under this article.
Source: L. 2003: Entire part amended with relocations, p. 1243, § 2, effective July 1, 2004. L. 2015: (a) amended, (HB 15-1198), ch. 173, p. 546, § 3, effective July 1.
Editor's note: In 2003, this section was formerly numbered as § 14-5-103.
COMMENT
The existence of procedures for interstate establishment, enforcement, or modification of support or a determination of parentage in UIFSA does not preclude the application of the general law of the forum. Even if the parents live in different states, for example, a petitioner may decide to file an original proceeding for child support (and most likely for other relief as well) directly in the state of residence of the respondent and proceed under that forum's generally applicable support law. In so doing, the out-of-state petitioner submits to the personal jurisdiction of the forum and, for the most part, is unaffected by UIFSA. Once a child-support order has been issued, this option is no longer available to interstate parties. Under UIFSA, a state may not permit a party to proceed to obtain a second support order; rather, in further litigation the tribunal must apply the act's provisions for enforcement of an existing order and limit modification to the strict standards of UIFSA.
This section facilitates the recognition and enforcement of a support order from a nation state that is entitled to have its orders recognized by comity, but is not a "foreign country" under Section 102(5). The insertion of the term "foreign support order" to replace "support order of a foreign country or political subdivision" in subsection (a) helps clarify application of "comity" for support enforcement cases. In UIFSA, four types of nation states are defined as "foreign countries": (1) Convention countries; (2) countries with bilateral agreements with the federal government; (3) countries with bilateral agreements with particular states; and (4) countries with similar support laws. However, orders of countries that do not fall within this definition may nevertheless be enforced under "comity". Applying comity to enforce a support order of a tribunal of another nation state intends courtesy and good will, and extends due regard for the legislative, executive, and judicial acts of another nation which is not a "foreign country" as defined in Section 102.
Although the determination by the United States Department of State that a foreign nation is a reciprocating country is binding on all states, recognition of a support order through comity is dependent on the law of each state. The reference to "remedies under other law" is intended to recognize the principle of comity as developed in the forum state by statutory or common law, rather than to create a substantive right independent of that law.
Subsection (b)(1) gives notice that UIFSA is not the only means for establishing or enforcing a support order with an interstate aspect. A potential child-support obligee may voluntarily submit to the jurisdiction of another state to seek the full range of desired relief under the law of that state using intrastate procedures, rather than resorting to the interstate procedure provided by UIFSA. A nonresident married parent may choose to file a proceeding in the forum state for dissolution of the marriage, including property division and spousal support, and in conjunction seek an order regarding child custody and visitation and child support. A parent may submit to the jurisdiction of another state for a determination of parentage and child support. A support order resulting from each of these scenarios implicates UIFSA. Invariably the issuing tribunal will have continuing, exclusive jurisdiction over its controlling child support or spousal-support order as provided by Sections 205, 207, and 211, infra , with all of the attendant application of the act to those orders. Likewise, the order or judgment of another state can be enforced without the necessity of registration under UIFSA by resort to other post-judgment enforcement remedies, such as lien, levy, execution, and filing claims in probate or bankruptcy actions.
On the other hand, subsection (b)(2) makes clear that jurisdiction to establish child custody and visitation orders is distinct from jurisdiction for child-support orders. For the former, jurisdiction generally rests on the child's connection with the state rather than personal jurisdiction over the respondent. See UCCJEA § 201; May v. Anderson, 345 U.S. 528 (1953) (Frankfurter, J., concurring). Under the Supreme Court's case law, jurisdiction to establish a child-support order requires personal jurisdiction over the respondent. See Kulko v. Superior Court, 436 U.S. 84 (1978). If the child-support order is sought under the authority of UIFSA, the most important aspect of this rule is that a child-support obligee utilizing the provisions of UIFSA to establish child support across state lines submits to jurisdiction for child support only, and does not submit to the jurisdiction of the responding state with regard to child custody or visitation.
ANNOTATION
Annotator's note. Since § 14-5-104 is similar to § 14-5-103 as it existed prior to the 2003 amendment to part 2 of article 5 of title 14, which resulted in the relocation of provisions, to § 14-5-104 as it existed prior to the 1993 repeal and reenactment of this article, and to repealed 43-2-3, C.R.S. 1963, and 43-2-3, CRS 53, relevant cases construing those provisions have been included in the annotations to this section.
Since the enactment of the uniform act in Colorado, there are now two distinct courses of action which a demanding state may take with respect to one who does not carry out his obligations of support to his family, namely: (1) Extradition on a criminal charge of nonsupport, and (2) the initiation of civil proceedings under the uniform act. Conrad v. McClearn, 166 Colo. 568 , 445 P.2d 222 (1968).
Either or both courses may be pursued, and the election lies wholly within the demanding state and the obligee. Conrad v. McClearn, 166 Colo. 568 , 445 P.2d 222 (1968).
The time to raise a defense is when there is an attempt to punish under both the criminal and the civil proceedings. Conrad v. McClearn, 166 Colo. 568 , 445 P.2d 222 (1968).
If a trial court in its discretion believes that proper support can be assured without applying the statute, it is free to do so. Jackson v. Jackson, 157 Colo. 564 , 404 P.2d 281 (1965).
The jurisdiction of the district court of Adams county, which arose from the filing and disposition of the divorce action did not preclude the district court of the city and county of Denver from proceeding pursuant to the uniform act when the mother and children had moved to Nevada. The question of support of minor children is a question which can be litigated separate and apart from divorce proceedings. Scheer v. District Court, 147 Colo. 265 , 363 P.2d 1059 (1961).
Equitable doctrine of unclean hands will not relieve father of his duty to support his child under this article. Kansas State Dept. of Soc. & Rehabilitation Servs. v. Henderson, 620 P.2d 60 (Colo. App. 1980).
Rights and duties under marriage dissolution decree unaffected by court's support order. A support order by a Colorado court, as the responding court in a proceeding under this article, does not affect the parties' rights and duties under a dissolution of marriage decree. Kansas State Dept. of Soc. & Rehabilitation Servs. v. Henderson, 620 P.2d 60 (Colo. App. 1980); In re Enewold, 709 P.2d 1385 (Colo. App. 1985).
In a proceeding for the dissolution of marriage in which no personal service in the state of Colorado had been made upon the husband, the trial court could not issue an award of child support and order that it should supersede any award for child support which the wife had obtained through this article. Offerman v. Alexander, 185 Colo. 383 , 524 P.2d 1082 (1974).
Fact that post-dissolution matter was filed under the Uniform Dissolution of Marriage Act did not give the court a proper basis for exercising jurisdiction as to child support where wife's only contact with Colorado was her granting of consent for the child to reside in this state with his father. In re Zinke, 967 P.2d 210 (Colo. App. 1998).
Mother is free to pursue remedies for child support collection available pursuant to §§ 19-6-101 and 26-13-105 . Father's argument that support must be established pursuant to this act because the mother and children are nonresidents of Colorado is invalid. People ex rel. A.K., 72 P.3d 402 (Colo. App. 2003).
Applied in County of Clearwater v. Petrash, 198 Colo. 231 , 598 P.2d 138 (1979); Rohrer v. Kane, 198 Colo. App. 231, 609 P.2d 1121 (1980).
14-5-105. Application of article to resident of foreign country and foreign support proceeding.
-
A tribunal of this state shall apply parts 1 through 6 of this article and, as applicable, part 7 of this article, to a support proceeding involving:
- A foreign support order;
- A foreign tribunal; or
- An obligee, obligor, or child residing in a foreign country.
- A tribunal of this state that is requested to recognize and enforce a support order on the basis of comity may apply the procedural and substantive provisions of parts 1 through 6.
- Part 7 of this article applies only to a support proceeding under the Convention. In such a proceeding, if a provision of part 7 of this article is inconsistent with parts 1 through 6 of this article, part 7 of this article controls.
Source: L. 2015: Entire section added, (HB 15-1198), ch. 173, p. 546, § 4, effective July 1.
COMMENT
Four distinct entities are defined as a "foreign country" with tribunals that enter a "foreign support order." See Section 102(5). With regard to the three types of proceedings identified in subsection (a), all of the provisions in this act in Articles 1 through 6 apply. Note, however, that under subsection (c), only one of these, a country "in which the Convention is in force with respect to the United States," see Section 102 (5)(D), will be subject to Article 7 as well as Articles 1 through 6. Thus, a support order from one of these countries may require special attention. After the Convention comes into force in the United States, a body of case law may develop if it becomes necessary to resolve unanticipated differences between this act and the Convention. As this extensive commentary and the many cross reference to provisions of the Convention indicate, significant efforts have been made to avoid any such conflicts.
Under subsection (b) a tribunal of this state may apply principles of comity if appropriate to recognize a support order from a foreign nation state that does not fit the definition of a "foreign country," see Section 102(5)(A)-(D), supra .
Subsection (c) resolves that if terms of the Convention and the terms of this act, including Article 7, are in conflict, the provision of the Convention controls. With regard to the other three statutory definitions of a "foreign country," all the terms, this act in articles 1 through 6 control. After the Convention comes into force in the United States, a body of case law may develop to resolve unanticipated differences between this act and the Convention.
PART 2 JURISDICTION
14-5-201. Bases for jurisdiction over nonresident.
-
In a proceeding to establish or enforce a support order or to determine parentage of a child, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:
- The individual is personally served with a summons within this state;
- The individual submits to the jurisdiction of this state by consent in a record, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
- The individual resided with the child in this state;
- The individual resided in this state and provided prenatal expenses or support for the child;
- The child resides in this state as a result of the acts or directives of the individual;
- The individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse; or
- There is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.
- The bases of personal jurisdiction set forth in subsection (a) of this section or in any other law of this state may not be used to acquire personal jurisdiction for a tribunal of this state to modify a child support order of another state unless the requirements of section 14-5-611 are met, or in the case of a foreign support order, unless the requirements of section 14-5-615 are met.
Source: L. 93: Entire article R&RE, p. 1584, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1244, § 3, effective July 1, 2004. L. 2015: Entire section amended, (HB 15-1198), ch. 173, p. 547, § 5, effective July 1.
COMMENT
General Jurisdictional Principle: Sections 201 and 202 contain what is commonly described as long-arm jurisdiction over a nonresident respondent for purposes of establishing a support order or determining parentage. Read together, subsections (a) and (b) provide the basic jurisdictional rules established by the act for interstate application of a support order, and are designed to be as broad as is constitutionally permissible. To sustain enforceability of a family support order in the United States the tribunal must be able to assert personal jurisdiction over the parties. See Estin v. Estin, 334 U.S. 541, 68 S. Ct. 1213, 92 L. Ed. 1561 (1948), and Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S. Ct. 1360, 1 L. Ed. 2d 1456 (1957) (spousal support); Kulko v. Superior Court, 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978) (child support).
Long-arm Provisions: Inclusion of this long-arm provision in this interstate act is justified because residents of two separate states are involved in the litigation, both of whom must be subject to the personal jurisdiction of the forum. Thus, the case has a clear interstate aspect, despite the fact that the substantive and procedural law of the forum state is applicable to a lawsuit in what is a one-state case. This rationale is sufficient to invoke additional UIFSA provisions in an otherwise intrastate proceeding. See Sections 202, 316, and 318, as pertaining to special rules of evidence and discovery for UIFSA cases. The intent is to ensure that every enacting state has a long-arm statute that is as broad as constitutionally permitted.
In situations in which the long-arm statute can be satisfied, the petitioner (either the obligor or the obligee) has two options: (1) utilize the long-arm statute to obtain personal jurisdiction over the respondent, or, (2) initiate a two-state proceeding under the succeeding provisions of UIFSA seeking to establish a support order in the respondent's state of residence. Of course, a third option is also available that does not implicate UIFSA; a petitioner may initiate a proceeding in the respondent's state of residence by filing a proceeding to settle all issues between the parties in a single proceeding.
Under RURESA, multiple support orders affecting the same parties were commonplace. UIFSA created a structure designed to provide for only one support order at a time. The new one-order regime is facilitated and combined with a broad assertion of personal jurisdiction under this long- arm provision. The frequency of a two-state procedure involving the participation of tribunals in both states has been substantially reduced by the introduction of this long-arm statute.
Subsection by subsection analyses: Subsections (1) through (8) are derived from a variety of sources, including the Uniform Parentage Act (1973) § 8, Texas Family Code § 102.011, and New York Family Court Act § 154.
Subsection (1) codifies the holding of Burnham v. Superior Court, 495 U.S. 604 (1990), which reaffirms the constitutional validity of asserting personal jurisdiction based on personal service within a state.
Subsection (2) expresses the principle that a nonresident party concedes personal jurisdiction by seeking affirmative relief or by submitting to the jurisdiction by answering or entering an appearance. However, the power to assert jurisdiction over an issue involving child support under the act does not necessarily extend the tribunal's jurisdiction to other matters. As noted above, family law is rife with instances of bifurcated jurisdiction. For example, a tribunal may have jurisdiction to establish a child-support order based on personal jurisdiction over the obligor under Section 201, but lack jurisdiction over child custody, which is a matter of status adjudication usually based on the home state of the child.
Subsections (3) through (6) identify specific fact situations justifying the assertion of long-arm jurisdiction over a nonresident. Each provides an appropriate affiliating nexus for such an assertion, when judged on a case-by-case basis with an eye on procedural and substantive due process. Further, each subsection does contain a possibility that an overly literal construction of the terms of the statute will overreach due process. For example, subsection (3) provides that long-arm jurisdiction to establish a support order may be asserted if "the individual resided with the child in this state." The typical scenario contemplated by the statute is that the parties lived as a family unit in the forum state, separated, and one of the parents subsequently moved to another state while the other parent and the child continued to reside in the forum. No time frame is stated for filing a proceeding; this is based on the fact that the absent parent has a support obligation that extends for at least the minority of the child (and longer in some states).
On the other hand, suppose that the two parents and their child lived in State A for many years and then decided to move the family to State B to seek better employment opportunities. Those opportunities did not materialize and, after several weeks or a few months of frustration with the situation, one of the parents returned with the child to State A. Under these facts, a tribunal of State A may conclude it has long-arm jurisdiction to establish the support obligation of the absent parent. But, suppose that the family's sojourn in State B lasted for many years, and then one parent unilaterally decides to return to State A. It is reasonable to expect that a tribunal will conclude that assertion of personal jurisdiction over the absent parent immediately after the return based on subsection (3) would offend due process. Note the provisions of UIFSA are available to the returning parent to establish child support in State B, and that state will have long-arm jurisdiction to establish support binding on the moving parent under Section 201. See also Section 204 for the resolution of simultaneous proceedings provided by the act.
The factual situations catalogued in the first seven subsections are appropriate and constitutionally acceptable grounds upon which to exercise personal jurisdiction over an individual. Subsection (7) is bracketed because not all states maintain putative father registries.
Finally, subsection (8) tracks the broad, catch-all provisions found in many state statutes, including Cal. Civ. Proc. Code § 410.10 (1973), and Tex. Family Code § 102.011. Note, however, that the California provision, standing alone, was found to be inadequate to sustain a child-support order under the facts presented in Kulko v. Superior Court, 436 U.S. 84 (1978).
Limit on Asserting Long-arm Jurisdiction to Modify Child-Support Order: Subsection (b) elaborates on the principle by providing that modification of an existing child-support order goes beyond the usual rules of personal jurisdiction over the parties. Amended in UIFSA (2001), subsection (b) makes clear long-arm personal jurisdiction over a respondent, standing alone, is not sufficient to grant subject matter jurisdiction to a responding tribunal of the state of residence of the petitioner for that tribunal to modify an existing child-support order. See the extended commentaries to Sections 609 through 616. The limitations on modification of a child-support order provided by Section 611 must be observed irrespective of the existence of personal jurisdiction over the parties.
For tribunals of the United States, these sections integrate the concepts of personal jurisdiction and its progeny, continuing jurisdiction, and controlling orders. Note that the long-arm provisions of UIFSA (1992) were originally written with only domestic cases in mind. If the tribunal of a state has personal jurisdiction over an individual residing in another state (or, by implication, a foreign country), the application of local law is entitled to recognition and enforcement. See Full Faith and Credit for Child Support Orders Act, a.k.a. FFCCSOA, 28 U.S.C. § 1738B. Integrating this federal law based on the Constitution with the statutory rule of subject matter jurisdiction for modification of an existing child-support order is a major accomplishment of UIFSA. Obviously, the federal act is applicable to a child-support order issued by a state tribunal, but is not applicable to a foreign support order. Nor does FFCCSOA in any way affect a foreign country, which will apply its local law of recognition, enforcement, and modification to a child-support order originating from a state of the United States. When the Convention enters into force, the integration of UIFSA and the law of some foreign countries will be international in scope. At that time the jurisdictional rules of all concerned become significantly more complex. See Section 708. Nonetheless, it seems likely the complexity will be more theoretical than actually troublesome.
Applicability of Long-Arm Jurisdiction to Spousal Support: Although this long-arm statute applies to a spousal-support order, almost all of the specific provisions of this section relate to a child-support order or a determination of parentage. This derives from the fact that the focus of UIFSA is primarily on child support. Only subsections (1), (2), and (8) are applicable to an action for spousal support asserting long-arm jurisdiction over a nonresident. The first two subsections are wholly noncontroversial insofar as an assertion of personal jurisdiction is concerned. Moreover, as a practical matter, an assertion of personal jurisdiction under UIFSA will almost always also yield jurisdiction over all matters to be decided between the spouses, including division of property on divorce. Thus, the most obvious possible basis for asserting long-arm jurisdiction over spousal support, i.e., "last matrimonial domicile," is not included in Section 201 to avoid the potential problem of another instance of bifurcated jurisdiction. This restraint avoids a situation in which UIFSA would arguably grant long-arm jurisdiction for a spousal-support order when the forum state has no correlative statute for property division in divorce.
Potential Application of Long-arm Jurisdiction to Foreign Support Order: If the facts of a case warrant, whether in an interstate or an international context, a state tribunal shall apply long-arm jurisdiction to establish a support order without regard to the physical location or residence of a party outside the United States. Interestingly, under certain fact situations involving a request to recognize and enforce or modify a foreign support order, a state tribunal may be called upon to determine the applicability of long-arm jurisdiction under UIFSA to the facts of the case in order to decide the enforceability of the foreign support order.
For example, a challenge to a request for enforcement of a foreign support order may be made by a respondent based on an allegation that the foreign issuing tribunal lacked personal jurisdiction over the respondent. A respondent may acknowledge that the obligee or the child resides in France, and that a French tribunal issued a support order. But, in the Kulko decision the Court accepted the respondent's allegation that under the state law then available there was no nexus between himself and California and therefore no personal jurisdiction over him as required by the opinion. From the perspective of the French tribunal under the facts above, an asserted lack of personal jurisdiction is of no consequence. Under the law of France, like the law of virtually all other foreign nations, the child-based jurisdiction stemming from the residence of the obligee or child is sufficient to sustain a child-support order against the noncustodial parent. But, meshing the world-wide system of child-based jurisdiction with the U.S. requirement of in personam jurisdiction presented an easily resolved challenge to the drafters of the new Hague Maintenance Convention.
Thus, under the Convention, a state tribunal may be called upon to determine whether the facts underlying the support order would have provided the issuing foreign tribunal with personal jurisdiction over the respondent under the standards of this section. In effect, the question is whether the foreign tribunal would have been able to exercise jurisdiction in accordance with Section 201. The foregoing fact situation illustrates that it is for the state tribunal to determine if the order of the French tribunal would have complied with UIFSA Section 201 on the facts of the case. If so, the foreign support order is entitled to recognition and enforcement. For example, the facts of the case may show that the father lived with the child in France, supported the mother or child in France, or perhaps was responsible for, or agreed to the movement of the child to France.
On the other hand, if the issuing French tribunal would have lacked personal jurisdiction over the respondent if Section 201 had been applicable, the support order cannot be enforced because there was no nexus between France and the respondent. The United States will make a reservation to Convention article 20, declining to recognize or enforce a foreign support order on child-based jurisdiction founded solely on the location or residence of the obligee or the child in the foreign country.
Interestingly, if the responding state tribunal finds the French tribunal lacked personal jurisdiction over the respondent, additional action may be taken. In a Convention case, the responding state tribunal may establish a child-support order if it has personal jurisdiction over the respondent without requesting a separate application for establishment of a new order.
Related to Convention: art. 2. Scope; art. 19. Scope of the chapter; art. 20. Bases for recognition and enforcement; art. 32. Enforcement under internal law; art. 62. Reservations.
ANNOTATION
This section was adopted to extend long-arm jurisdiction as far as constitutionally permissible, but without establishing "child-state jurisdiction" under which the support duty and child's location, alone, would provide the jurisdictional nexus for a support order. In re Malwitz, 81 P.3d 1076 (Colo. App. 2003), rev'd on other grounds, 99 P.3d 56 ( Colo. 2004 ).
Nonresident father's out-of-state abuse and harassment satisfies subsection (5). Father's domestic abuse against mother in Texas and awareness that mother's family ties were in Colorado and mother might move to Colorado with child to escape the abuse were sufficient to constitute "acts or directives" within the meaning of subsection (5). In re Malwitz, 99 P.3d 56 ( Colo. 2004 ).
Trial court's exercise of personal jurisdiction over nonresident father whose abuse and harassment of mother in Texas caused mother and child to flee to Colorado and seek public assistance was consistent with due process. In re Malwitz, 99 P.3d 56 (Colo. 2004).
Colorado court enforcing foreign judgment against Colorado resident must consider not only whether the foreign court had personal jurisdiction under its laws, but also whether the exercise of jurisdiction by the foreign state is consistent with the constitution and laws of the United States. The district court is required to adjudicate whether husband had sufficient minimum contacts with England to render constitutional under United States law the assertion of jurisdiction over him by the English court. In re Lohman, 2015 COA 134 , 361 P.3d 1110.
Applied in In re Haddad, 93 P.3d 617 (Colo. App. 2004).
14-5-202. Duration of personal jurisdiction.
Personal jurisdiction acquired by a tribunal of this state in a proceeding under this article or other law of this state relating to a support order continues as long as a tribunal of this state has continuing, exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its order as provided by sections 14-5-205, 14-5-206, and 14-5-211.
Source: L. 93: Entire article R&RE, p. 1584, § 1, effective January 1, 1995. L. 97: Entire section amended, p. 534, § 2, effective July 1. L. 2003: Entire section amended, p. 1244, § 4, effective July 1, 2004.
COMMENT
It is a useful legal truism after a tribunal of a state issues a support order binding on the parties, which must be based on personal jurisdiction by virtue of Kulko v. Superior Court , 436 U.S. 84 (1978) and Vanderbilt v. Vanderbilt , 354 U.S. 416 (1957), jurisdiction in personam continues for the duration of the support obligation absent the statutorily specified reasons to terminate the order. The rule established by UIFSA is that the personal jurisdiction necessary to sustain enforcement or modification of an order of child support or spousal support persists as long as the order is in force and effect, even as to arrears, see Sections 205-207, 211, infra . This is true irrespective of the context in which the support order arose, e.g., divorce, UIFSA support establishment, parentage establishment, modification of prior controlling order, etc. Insofar as a child-support order is concerned, depending on specific factual circumstances a distinction is made between retaining continuing, exclusive jurisdiction to modify an order and having continuing jurisdiction to enforce an order, see Sections 205 and 206, infra . Authority to modify a spousal-support order is permanently reserved to the issuing tribunal, Section 211, infra .
14-5-203. Initiating and responding tribunals of this state.
Under this article, a tribunal of this state may serve as an initiating tribunal to forward proceedings to a tribunal of another state, and as a responding tribunal for proceedings initiated in another state or a foreign country.
Source: L. 93: Entire article R&RE, p. 1585, § 1, effective January 1, 1995. L. 2015: Entire section amended, (HB 15-1198), ch. 173, p. 548, § 6, effective July 1.
COMMENT
This section identifies the two roles a tribunal of the forum may serve: acting as either an initiating or a responding tribunal. See Sections 304 and 305 for the duties and powers of the tribunal in each of these capacities. Under UIFSA, a tribunal may serve as a responding tribunal even when there is no initiating tribunal. This accommodates the direct filing of a proceeding in a responding tribunal by a nonresident of the forum, whether residing in a state or anywhere else in the world. Note, however, that the section does not deal with whether an initiating tribunal of a state may forward a proceeding to a tribunal in a foreign country, which may be left to the individual support enforcement agency.
Related to Convention: art. 2. Scope; art. 37. Direct requests to competent authorities.
14-5-204. Simultaneous proceedings.
-
A tribunal of this state may exercise jurisdiction to establish a support order if the petition or comparable pleading is filed after a pleading is filed in another state or a foreign country only if:
- The petition or comparable pleading in this state is filed before the expiration of the time allowed in the other state or the foreign country for filing a responsive pleading challenging the exercise of jurisdiction by the other state or the foreign country;
- The contesting party timely challenges the exercise of jurisdiction in the other state or the foreign country; and
- If relevant, this state is the home state of the child.
-
A tribunal of this state may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or comparable pleading is filed in another state or a foreign country if:
(1) The petition or comparable pleading in the other state or foreign country is filed before the expiration of the time allowed in this state for filing a responsive pleading challenging the exercise of jurisdiction by this state;
(2) The contesting party timely challenges the exercise of jurisdiction in this state; and
(3) If relevant, the other state or foreign country is the home state of the child.
Source: L. 93: Entire article R&RE, p. 1585, § 1, effective January 1, 1995. L. 2015: Entire section amended, (HB 15-1198), ch. 173, p. 548, § 7, effective July 1.
COMMENT
Under the one-order system established by UIFSA, it was necessary to provide a procedure to eliminate the multiple orders so common under RURESA and URESA. This requires cooperation between, and deference by, state tribunals in order to avoid issuance of competing support orders. To this end, tribunals are expected to take an active role in seeking out information about support proceedings in another state or foreign country concerning the same child. Depending on the circumstances, one of the two tribunals considering the same support obligation should decide to defer to the other. The inclusion of a foreign country in this investigation facilitates the goal of a "one-order world" for a support obligation.
UIFSA (1992) took a significant departure from the approach adopted by the UCCJA (1986) ("first filing"), by choosing the "home state of the child" as the primary factual basis for resolving competing jurisdictional disputes. Not coincidentally, this had previously been the choice for resolving jurisdiction conflicts of the federal Parental Kidnapping Prevention Act, 28 U.S.C. Section 1738A (1980). Given the pre-emptive nature of the PKPA, and the possibility that custody and support will both be involved in some cases, the PKPA/UIFSA choice for resolving disputes between competing jurisdictional assertions was followed in 1997 by the decision of NCCUSL to replace the UCCJA with the UCCJEA. If the child has no home state, however, "first filing" will control.
14-5-205. Continuing, exclusive jurisdiction to modify child support order.
-
A tribunal of this state that has issued a child support order consistent with the law of this state has and shall exercise continuing, exclusive jurisdiction to modify its child support order if the order is the controlling order and:
- At the time of the filing of a request for modification, this state is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or
- Even if this state is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the tribunal of this state may continue to exercise jurisdiction to modify its order.
-
A tribunal of this state that has issued a child support order consistent with the law of this state may not exercise continuing, exclusive jurisdiction to modify the order if:
(1) All of the parties who are individuals file consent in a record with the tribunal of this state that a tribunal of another state that has jurisdiction over at least one of the parties who is an individual or that is located in the state of residence of the child may modify the order and assume continuing, exclusive jurisdiction; or
(2) Its order is not the controlling order.
- If a tribunal of another state has issued a child support order pursuant to the "Uniform Interstate Family Support Act", or a law substantially similar to that act, which modifies a child support order of a tribunal of this state, tribunals of this state shall recognize the continuing, exclusive jurisdiction of the tribunal of the other state.
- A tribunal of this state that lacks continuing, exclusive jurisdiction to modify a child support order may serve as an initiating tribunal to request a tribunal of another state to modify a support order issued in that state.
- A temporary support order issued ex parte or pending resolution of a jurisdictional conflict does not create continuing, exclusive jurisdiction in the issuing tribunal.
- (Deleted by amendment, L. 2003, p. 1245 , § 5, effective July 1, 2004.)
Source: L. 93: Entire article R&RE, p. 1585, § 1, effective January 1, 1995. L. 97: (a)(2), (b), IP(c), and (d) amended, p. 534, § 3, effective July 1. L. 2003: Entire section amended, p. 1245, § 5, effective July 1, 2004.
COMMENT
This section is perhaps the most crucial provision in UIFSA. Consistent with the precedent of the federal PARENTAL KIDNAPPING PREVENTION ACT, 28 U.S.C. § 1738A, except in very narrowly defined circumstances the issuing tribunal retains continuing, exclusive jurisdiction over a child-support order, commonly known as CEJ. First introduced by UIFSA in 1992, this principle is in force and widely accepted in all states. Indeed CEJ is fundamental to the principle of one-child-support-order-at-a-time.
As long as one of the individual parties or the child continues to reside in the issuing state, and as long as the parties do not agree to the contrary, the issuing tribunal has continuing, exclusive jurisdiction over its child-support order which in practical terms means that it may modify its order. The statute takes an even-handed approach. The identity of the party remaining in the issuing state obligor or obligee does not matter. Indeed, if the individual parties have left the issuing state but the child remains behind, CEJ remains with the issuing tribunal. Even if the parties and the child no longer reside in the issuing state, the support order continues in existence and is fully enforceable unless and until a modification takes place in accordance with the requirements of Article 6, infra . Note, however, that the CEJ of the issuing tribunal over a spousal-support order is permanent, see Section 211, infra .
Subsection (a)(1) states the basic rule, and subsection (a)(2) states an exception to that rule. First, the time to measure whether the issuing tribunal has continuing, exclusive jurisdiction to modify its order, or whether the parties and the child have left the state, is explicitly stated to be at the time of filing a proceeding to modify the child-support order. Second, the term in subsection (a)(1) "is the residence" makes clear that any interruption of residence of a party between the date of the issuance of the order and the date of filing the request for modification does not affect jurisdiction to modify. Thus, if there is but one order, it is the controlling order in effect and enforceable throughout the United States, notwithstanding the fact that everyone at one time had left the issuing state. If the order is not modified during this time of mutual absence, a return to reside in the issuing state by a party or child immediately identifies the proper forum at the time of filing a proceeding for modification. Although the statute does not speak explicitly to the issue, temporary absence should be treated in a similar fashion. Temporary employment in another state may not forfeit a claim of residence in the issuing state. Of course, residence is a fact question for the trial court, keeping in mind that the question is residence, not domicile.
From the beginning of the implementation of the CEJ principle, questions have been raised about why a tribunal may not modify its own order if the parties agree that it should do so even after the parties have left the state. The move of the parties and the child from the state may have been of a very short distance and, although the parties no longer reside in the issuing state, they may prefer to continue to have the child-support order be governed by the same issuing tribunal because they continue to have a strong affiliation with it. For example, the child-support order may have been issued by a tribunal of Washington, D.C. Subsequently the obligee and child have moved to Virginia, the obligor now resides in Maryland, and perhaps one or both parties continue to be employed in Washington. Subsection (a)(2) authorizes retention of CEJ by the issuing state when the parties reasonably may prefer to continue to deal with the issuing tribunal even though the state is "not the residence" of the parties or child as an exception to the general rules of CEJ for modifications of a support order.
The other side of the coin follows logically. Just as subsection (a) defines the retention of continuing, exclusive jurisdiction, by clear implication the subsection also identifies how jurisdiction to modify may be lost. That is, if all the relevant persons the obligor, the individual obligee, and the child have permanently left the issuing state, absent an agreement the issuing tribunal no longer has an appropriate nexus with the parties or child to justify the exercise of jurisdiction to modify its child-support order. Further, the issuing tribunal will have no current evidence readily available to it about the factual circumstances of anyone involved, and the taxpayers of that state will have no reason to expend public funds on the process. Note, however, that the original order of the issuing tribunal remains valid and enforceable. That order is in effect not only in the issuing state, but also in those states in which the order has been registered. The order also may be registered and enforced in additional states even after the issuing tribunal has lost its power to modify its order, see Sections 601-604, infra . In sum, the original order remains in effect until it is properly modified in accordance with the narrow terms of Sections 609-612, infra .
Subsection (b)(1) explicitly provides that the parties may agree in a record that the issuing tribunal should relinquish its continuing, exclusive jurisdiction to modify so that a tribunal in another state may assume CEJ to modify the child-support order. It is believed that such consent seldom occurs because of the almost universal desire of each party to prefer his or her local tribunal. The principle that the parties should be allowed to agree upon an alternate forum if they so choose also extends to a situation in which all the parties and the child have left the issuing state and are in agreement that a tribunal of the state in which only the movant resides shall assume modification jurisdiction, see Section 611.
Although subsections (a) and (b) identify the methods for the retention and the loss of continuing, exclusive jurisdiction by the issuing tribunal, this section does not confer jurisdiction to modify on another tribunal. Modification requires that a tribunal have personal jurisdiction over the parties and meet other criteria as provided in Sections 609 through 615, infra .
Related to Convention: art. 18. Limit on proceedings.
14-5-206. Continuing jurisdiction to enforce child support order.
-
A tribunal of this state that has issued a child support order consistent with the law of this state may serve as an initiating tribunal to request a tribunal of another state to enforce:
- The order if the order is the controlling order and has not been modified by a tribunal of another state that assumed jurisdiction pursuant to the "Uniform Interstate Family Support Act"; or
- A money judgment for arrears of support and interest on the order accrued before a determination that an order of a tribunal of another state is the controlling order.
- A tribunal of this state having continuing jurisdiction over a support order may act as a responding tribunal to enforce the order.
- (Deleted by amendment, L. 2003, p. 1246 , § 6, effective July 1, 2004.)
Source: L. 93: Entire article R&RE, p. 1586, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1246, § 6, effective July 1, 2004. L. 2015: (a)(2) amended, (HB 15-1198), ch. 173, p. 548, § 8, effective July 1.
OFFICIAL COMMENT
This section is the correlative of the continuing, exclusive jurisdiction described in the preceding section. It makes the relatively subtle distinction between the CEJ "to modify a support order" established in Section 205 and the "continuing jurisdiction to enforce" established in this section. A keystone of UIFSA is that the power to enforce the order of the issuing tribunal is not "exclusive" with that tribunal. Rather, on request one or more responding tribunals may also exercise authority to enforce the order of the issuing tribunal. Secondly, under the one-order-at-a-time system, the validity and enforceability of the controlling order continues unabated until it is fully complied with, unless it is replaced by a modified order issued in accordance with the standards established by Sections 609-616. That is, even if the individual parties and the child no longer reside in the issuing state, the controlling order remains in effect and may be enforced by the issuing tribunal or any responding tribunal without regard to the fact that the potential for its modification and replacement exists.
Subsection (a) authorizes the issuing tribunal to initiate a request for enforcement of its order by a tribunal of another state if its order is controlling, see Section 207, or to request reconciliation of the arrears and interest due on its order if another order is controlling.
Subsection (b) reiterates that the issuing tribunal has jurisdiction to serve as a responding tribunal to enforce its own order at the request of another tribunal.
Related to Convention: art. 19. Scope of the Chapter.
14-5-207. Determination of controlling child support order.
- If a proceeding is brought under this article and only one tribunal has issued a child support order, the order of that tribunal controls and must be recognized.
-
If a proceeding is brought under this article, and two or more child support orders have been issued by tribunals of this state, another state, or a foreign country with regard to the same obligor and same child, a tribunal of this state having personal jurisdiction over both the obligor and individual obligee shall apply the following rules and by order shall determine which order controls and must be recognized:
- If only one of the tribunals would have continuing, exclusive jurisdiction under this article, the order of that tribunal controls.
-
If more than one of the tribunals would have continuing, exclusive jurisdiction under this article:
- An order issued by a tribunal in the current home state of the child controls; or
- If an order has not been issued in the current home state of the child, the order most recently issued controls.
- If none of the tribunals would have continuing, exclusive jurisdiction under this article, the tribunal of this state shall issue a child support order, which controls.
- If two or more child support orders have been issued for the same obligor and same child, upon request of a party who is an individual or that is a support enforcement agency, a tribunal of this state having personal jurisdiction over both the obligor and the obligee who is an individual shall determine which order controls under subsection (b) of this section. The request may be filed with a registration for enforcement or registration for modification pursuant to part 6 of this article, or may be filed as a separate proceeding.
- A request to determine which is the controlling order shall be accompanied by a copy of every child support order in effect and the applicable record of payments. The requesting party shall give notice of the request to each party whose rights may be affected by the determination.
- The tribunal that issued the controlling order under subsection (a), (b), or (c) of this section has continuing jurisdiction to the extent provided in section 14-5-205 or 14-5-206.
-
A tribunal of this state that determines by order which is the controlling order under subsection (b)(1), (b)(2), or (c) of this section, or that issues a new controlling order under subsection (b)(3) of this section, shall state in that order:
(1) The basis upon which the tribunal made its determination;
(2) The amount of prospective support, if any; and
(3) The total amount of consolidated arrears and accrued interest, if any, under all of the orders after all payments made are credited as provided by section 14-5-209.
- Within thirty days after issuance of an order determining which is the controlling order, the party obtaining the order shall file a certified copy of it in each tribunal that issued or registered an earlier order of child support. A party or support enforcement agency obtaining the order that fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file does not affect the validity or enforceability of the controlling order.
- An order that has been determined to be the controlling order, or a judgment for consolidated arrears of support and interest, if any, made pursuant to this section shall be recognized in proceedings under this article.
Source: L. 93: Entire article R&RE, p. 1587, § 1, effective January 1, 1995. L. 97: Entire section amended, p. 535, § 4, effective July 1. L. 2003: Entire section amended, p. 1246, § 7, effective July 1, 2004. L. 2015: (a), (b), and (c) amended, (HB 15-1198), ch. 173, p. 548, § 9, effective July 1.
COMMENT
In addition to the introduction of the concepts of one-order and continuing, exclusive jurisdiction in Section 205, another dramatic founding principle of UIFSA was to establish a system whereby the multiple orders created by URESA and RURESA could be reconciled in the transition from a world with multiple child-support orders to a one-order-at-a-time world. This principle introduced by Section 207 was subsequently incorporated into the requirements of 28 USC 1738B, Full Faith and Credit for Child Support Orders, a.k.a. FFCCSOA.
The combination of FFCCSOA becoming effective on October 20, 1994 and the adoption of UIFSA (1996) being mandated for all states by January 1, 1998, has made this section almost never used. The existence of multiple, valid orders for ongoing support have all but disappeared.
Sections 209-210, and especially Section 207, are designed to span the gulf between the one-order system created by UIFSA and the multiple-order system previously in place under RURESA and URESA. These transitional procedures necessarily must provide for the eventual elimination of existing multiple support orders in an expeditious and efficient manner. Although FFCCSOA was effective October 20, 1994 and all U.S. jurisdictions enacted UIFSA by 1998, considerable time is required to pass before its one-order system could be completely in place. For example, multiple 21-year child-support orders issued for an infant in 1996 and 1997 would, by their terms, not end the conflict until the first expires 2017 absent resolution of the conflict by a tribunal under this section. Nonetheless, at least on the appellate level, the problem of multiple orders is fast disappearing. This section provides a relatively simple procedure to identify a single viable order that will be entitled to prospective enforcement in every state.
Subsection (a) declares that if only one child-support order exists, it is to be denominated the controlling order, irrespective of when and where it was issued and whether any of the individual parties or the child continue to reside in the issuing state.
Subsection (b) establishes the priority scheme for recognition and prospective enforcement of a single order among existing multiple orders regarding the same obligor, obligee, and child. A tribunal requested to sort out the multiple orders and determine which one will be prospectively controlling of future payments must have personal jurisdiction over the litigants in order to ensure that its decision is binding on all concerned. For UIFSA to function, one order must be denominated as the controlling order, and its issuing tribunal must be recognized as having continuing, exclusive jurisdiction. In choosing among existing multiple orders, none of which can be distinguished as being in conflict with the principles of UIFSA, subsection (b)(1) gives first priority to an order issued by the only tribunal that is entitled to continuing, exclusive jurisdiction under the terms of UIFSA, i.e., an individual party or the child continues to reside in that state and no other state meets this criterion. If two or more tribunals would have continuing, exclusive jurisdiction under the act, subsection (b)(2) first looks to the tribunal of the child's current home state. If that tribunal has not issued a support order, subsection (b)(2) looks next to the order most recently issued. Finally, subsection (b)(3) provides that if none of the existing multiple orders are entitled to be denominated as the controlling order because none of the preceding priorities apply, the forum tribunal is directed to issue a new order, given that it has personal jurisdiction over the obligor and obligee. The new order becomes the controlling order, establishes the continuing, exclusive jurisdiction of the tribunal, and fixes the support obligation and its nonmodifiable aspects, primarily duration of support, see Sections 604 and 611(c), infra . The rationale for creating a new order to replace existing multiple orders is that there is no valid reason to prefer the terms of any one of the multiple orders over another in the absence of a fact situation described in subsections (b)(1) or (b)(2).
As originally promulgated, UIFSA did not come to grips with whether existing multiple orders issued by different states might be entitled to full faith and credit without regard to the determination of the controlling order under the act. The drafters took the position that state law, however uniform, could not interfere with the ultimate interpretation of a constitutional directive. Fortunately, this question has almost certainly been mooted by the 1996 amendment to 28 U.S.C. § 1738B, Full Faith and Credit for Child Support Orders. Congress incorporated the multiple order recognition provisions of Section 207 of UIFSA into FFCCSOA virtually word for word in the PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996. Pub. L. 104-193, Aug. 22, 1996, 110 Stat. 2221.
It is not altogether clear whether the terms of UIFSA apply to a strictly intrastate case; that is, a situation in which multiple child-support orders have been issued by multiple tribunals of a single state and the parties and the child continue to reside in that state. This is not an uncommon situation, often traceable to the intrastate applicability of RURESA. A literal reading of the statutory language suggests the section applies. Further, FFCCSOA does not make a distinction regarding the tribunals that issued multiple orders. If multiple orders have been issued by different tribunals in the home state of the child, most likely the most recent will be recognized as the controlling order, notwithstanding the fact that UIFSA Section 207 (b)(2)(B), and FFCCSOA 42 U.S.C. § 1738B(f)(3), literally do not apply. At the very least, this section, together with FFCCSOA, provide a template for resolving such conflicts.
Subsection (c) clarifies that any party or a support enforcement agency may request a tribunal of the forum state to identify the controlling order. That party is directed to fully inform the tribunal of all existing child-support orders.
Subsection (d) seeks to assure the tribunal is furnished with all the information needed to make a proper determination of the controlling order, as well as the information needed to make a calculation of the consolidated arrears. The party or support enforcement agency requesting the determination of controlling order and determination of consolidated arrears is also required to notify all other parties and entities who may have an interest in either of those determinations. Those with such an interest most likely are support agencies and the obligee.
Subsection (e) provides that the determination of the controlling order under this section has the effect of establishing the tribunal with continuing, exclusive jurisdiction; only the order of that tribunal is entitled to prospective enforcement by a sister state.
Subsection (f) directs the forum tribunal to identify the details upon which it makes its determination of the controlling order. In addition, the tribunal is also directed to state specifically the amount of the prospective support, and to reconcile and consolidate the arrears and interest due on all of the multiple orders to the extent possible.
The party obtaining the determination is directed by subsection (g) to notify all interested tribunals of the decision after the fact. Although tribunals need not be given original notice of the proceeding, all tribunals that have contributed an order to the determination must be informed regarding which order was determined to be controlling, and should also be informed of the consolidated arrears and interest so that the extent of possible subsequent enforcement will be known with regard to each of the orders. The act does not deal with the resolution of potential conflicting claims regarding arrears; this is left to case-by-case decisions or to federal regulation.
Section 207 presumes that the parties are accorded notice and opportunity to be heard by the tribunal. It also presumes that the tribunal will be fully informed about all existing orders when it is requested to determine which one of the existing multiple child-support orders is to be accorded prospective enforcement. If this does not occur and one or more existing orders is not considered by the tribunal, the finality of its decision is likely to turn on principles of estoppel on a case-by-case basis.
Finally, subsection (h), affirms the concept that when a fully informed tribunal makes a determination of the controlling order for prospective enforcement, or renders a judgment for the amount of the consolidated arrears, the decision is entitled to full faith and credit.
ANNOTATION
A court of this state must recognize the continuing, exclusive jurisdiction of a tribunal of another state that has issued a child support order pursuant to law substantially similar to the Uniform Interstate Family Support Act. In re Zinke, 967 P.2d 210 (Colo. App. 1998).
The issuing tribunal retains continuing, exclusive jurisdiction over its order as long as one of the individual parties or the child continues to reside in the issuing state. In re Zinke, 967 P.2d 210 (Colo. App. 1998); In re Hillstrom, 126 P.3d 315 (Colo. App. 2005).
The issuing tribunal has continuing, exclusive jurisdiction over its order unless each party consents in writing to a court of another state assuming continuing, exclusive jurisdiction to modify the order. In re Hillstrom, 126 P.3d 315 (Colo. App. 2005).
14-5-208. Child support orders for two or more obligees.
In responding to registrations or petitions for enforcement of two or more child support orders in effect at the same time with regard to the same obligor and different individual obligees, at least one of which was issued by a tribunal of another state or a foreign country, a tribunal of this state shall enforce those orders in the same manner as if the orders had been issued by a tribunal of this state.
Source: L. 93: Entire article R&RE, p. 1587, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1248, § 8, effective July 1, 2004. L. 2015: Entire section amended, (HB 15-1198), ch. 173, p. 549, § 10, effective July 1.
COMMENT
This section is concerned with those multiple orders that involve two or more families of the same obligor. Although all such orders are entitled to enforcement, practical difficulties frequently exist. For example, full enforcement of each of the multiple orders may exceed the maximum allowed for income withholding. The federal statute, 42 U.S.C. § 666(b)(1), requires that to be eligible for the federal funding for enforcement, states must provide a ceiling for child-support withholding expressed in a percentage that may not exceed the federal law limitations on wage garnishment, Consumer Credit Protection Act of 1968, 15 U.S.C. § 1673(b). In order to allocate resources between competing families, UIFSA refers to state law. The basic principle is that one or more support orders for an out-of-state family of the obligor, and one or more orders for an in-state family, are of equal dignity. In allocating payments to different obligees, every child-support order should be treated as if it had been issued by a tribunal of the forum state, that is, preferential treatment for a local family over an out-of-state family is prohibited by local law. The addition of a foreign support order to the formula supplied by this section should assure that all children will have equal ability to obtain their share of child support.
14-5-209. Credit for payment.
A tribunal of this state shall credit amounts collected for a particular period pursuant to any child support order against the amounts owed for the same period under any other child support order for support of the same child issued by a tribunal of this state, another state, or a foreign country.
Source: L. 93: Entire article R&RE, p. 1588, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1248, § 9, effective July 1, 2004. L. 2015: Entire section amended, (HB 15-1198), ch. 173, p. 549, § 11, effective July 1.
COMMENT
The issuing tribunal is ultimately responsible for the overall control of the enforcement methods employed and for accounting for the payments made on its order from multiple sources. Until that scheme is fully in place, however, it will be necessary to continue to mandate pro tanto credit for actual payments made against all existing orders. The addition to include a foreign support order in the calculation should assure all payments of support are properly credited. This section does not attempt to impact the way support paid in an individual case is apportioned or distributed between the obligee and one or more states asserting a claim to the monies.
14-5-210. Application of article to nonresident subject to personal jurisdiction.
A tribunal of this state exercising personal jurisdiction over a nonresident in a proceeding under this article, under other law of this state relating to a support order, or recognizing a foreign support order may receive evidence from outside this state pursuant to section 14-5-316, communicate with a tribunal outside this state pursuant to section 14-5-317, and obtain discovery through a tribunal outside this state pursuant to section 14-5-318. In all other respects, parts 3 to 6 of this article do not apply, and the tribunal shall apply the procedural and substantive law of this state.
Source: L. 2003: Entire section added, p. 1248, § 10, effective July 1, 2004. L. 2015: Entire section amended, (HB 15-1198), ch. 173, p. 550, § 12, effective July 1.
COMMENT
Assertion of long-arm jurisdiction over a nonresident results in a one-state proceeding without regard to the fact that one of the parties resides in a different state or in a foreign country. On obtaining personal jurisdiction the tribunal must apply the law of the forum. Once personal jurisdiction has been asserted over a nonresident, the issuing tribunal retains continuing, exclusive jurisdiction (CEJ) to modify, and continuing jurisdiction to enforce a support order in accordance with the provisions of the act. Of course, it is far more common for a support order to be issued in conjunction with a divorce or determination of parentage in which both the obligor and obligee are residents of the forum than to be issued as a result of an assertion of long-arm jurisdiction. Note that either the petitioner or the respondent may be the nonresident party (either of whom may be the obligor or the obligee). Also note that absent this provision, the ordinary intrastate substantive and procedural law of the forum would apply to either fact situation without reference to the fact that one of the parties is a nonresident. Thus, CEJ applies whether the matter at hand involves establishment of an original support order or enforcement or modification of an existing order. In any event, if one of the parties resides outside the forum state, the nonresident may avail himself or herself of the special evidentiary and discovery provisions provided by UIFSA.
This section makes clear that the special rules of evidence and procedure identified in Sections 316, 317, and 318 are applicable in a case involving a nonresident of the forum state. Section 316 facilitates decision-making when a party or a child resides "outside this state" by providing special rules to recognize the impediments to presenting evidence caused by nonresident status. Note the terminology has the broadest possible application, i.e., worldwide. The improved interstate and international exchange of information enables the nonresident to participate as fully as possible in the proceedings without the necessity of personally appearing in the forum state. The same considerations account for authorizing interstate and international communications between tribunals as per Section 317. Finally, the discovery procedures of Section 318 are made applicable in a one- state proceeding when another tribunal may assist in that process. Of course, "may assist" is entirely at the discretion of the other tribunal. Note, a foreign tribunal may be completely unfamiliar with discovery procedures as known in the United States.
Generally, however, the ordinary substantive and procedural law of the forum state applies in a one- state proceeding. In sum, the parties and the tribunal in a one-state case may utilize those procedures that contribute to economy, efficiency, and fair play.
Related to Convention: art. 20. Bases for recognition and enforcement.
14-5-211. Continuing, exclusive jurisdiction to modify spousal-support order.
- A tribunal of this state issuing a spousal-support order consistent with the law of this state has continuing, exclusive jurisdiction to modify the spousal-support order throughout the existence of the support obligation.
- A tribunal of this state may not modify a spousal-support order issued by a tribunal of another state or a foreign country having continuing, exclusive jurisdiction over that order under the law of that state or foreign country.
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A tribunal of this state that has continuing, exclusive jurisdiction over a spousal-support order may serve as:
- An initiating tribunal to request a tribunal of another state to enforce the spousal-support order issued in this state; or
- A responding tribunal to enforce or modify its own spousal-support order.
Source: L. 2003: Entire section added, p. 1248, § 10, effective July 1, 2004. L. 2015: (b) amended, (HB 15-1198), ch. 173, p. 550, § 13, effective July 1.
OFFICIAL COMMENT
The amendment to subsection (b) ensures that the restriction on modification of an out-of-state spousal-support order extends to a foreign order. At the same time, subsection (b) provides that the question of continuing, exclusive jurisdiction be resolved under the law of the issuing tribunal. Thus, if a foreign spousal- support order were subject to modification in another country by the law of the issuing tribunal, this section would permit modification in a tribunal of this state.
Related to Convention: art. 2. Scope.
PART 3 CIVIL PROVISIONS OF GENERAL APPLICATION
INTRODUCTORY COMMENT
This article adds a wide variety of procedural provisions to existing statutory and procedural rules for civil cases. If there is a conflict between those provisions found for other litigation and UIFSA rules set forth in this article, obviously UIFSA rules prevail. For example, it is unlikely that a state will have a provision for testimony by telephone or audiovisual means in a final hearing. Section 316 of this act creates such a right for an out-of-state individual. Revisions in this article shift the perspective slightly to accommodate the inclusion of a foreign support order in the equation. Many, but not all, of the provisions in this article are based upon the fact that a party does not "reside in this state." Application of these provisions is not solely based on whether the absent party resides in "another state," as formerly was the case. Rather, three distinct formulations are employed depending on the intended application of the provisions: "residing in a state;" "residing in . . . a foreign country;" or "residing outside this state." The third alternative is intentionally the broadest because it includes persons residing anywhere and is not limited to persons residing in a "foreign country" as defined in Section 102.
14-5-301. Proceedings under article.
- Except as otherwise provided in this article, this part 3 applies to all proceedings under this article.
- An individual petitioner or a support enforcement agency may initiate a proceeding authorized under this article by filing a petition in an initiating tribunal for forwarding to a responding tribunal or by filing a petition or a comparable pleading directly in a tribunal of another state or foreign country which has or can obtain personal jurisdiction over the respondent.
- (Deleted by amendment, L. 2003, p. 1249 , § 11, effective July 1, 2004.)
Source: L. 93: Entire article R&RE, p. 1588, § 1, effective January 1, 1995. L. 94: (b)(1) amended, p. 1547, § 26, effective January 1, 1995. L. 96: (b)(1) amended, p. 593, § 4, effective July 1. L. 97: (b)(1) amended, p. 536, § 5, effective July 1. L. 2003: Entire section amended, p. 1249, § 11, effective July 1, 2004. L. 2015: (b) amended, (HB 15-1198), ch. 173, p. 550, § 14, effective July 1.
COMMENT
Subsection (a) mandates application of the general provisions of this article to all UIFSA proceedings, including those affecting a foreign support order.
The statement in subsection (b) is axiomatic that the tribunal in which a petition is filed for establishment or enforcement of a support order, or for modification of a child-support order, must be able to assert personal jurisdiction over the respondent. It is also axiomatic that an individual petitioner requesting affirmative relief under this act submits to the personal jurisdiction of the tribunal. Subsection (b) also continues reference to the basic two-state procedure long employed by the former reciprocal acts to establish a support order in the interstate context, but expands it to recognize foreign countries. Direct filing of a petition in a state tribunal by an individual or a support enforcement agency without reference to an initiating tribunal in another state was introduced by UIFSA (1992). UIFSA (2008) extends the direct filing capability to foreign countries as well.
Although the filing of a petition in an initiating tribunal to be forwarded to a responding tribunal is still recognized as an available procedure, the direct filing procedure has proven to be one of the most significant improvements in efficient interstate case management. The promulgation and use of the federally mandated, or substantially conforming, forms, Section 311(b), further serves to eliminate any role for the initiating tribunal. Incidentally, the Convention contains approved forms for use in Convention cases processed through a Central Authority.
Related to Convention: art. 2. Scope; art. 10. Available applications; art. 19. Scope of the chapter; art. 20. Bases for recognition and enforcement; art. 32. Enforcement under internal law; art. 33. Non-discrimination; art. 34. Enforcement measures; art.37. Direct requests to competent authorities; Annex 1. Transmittal form under Article 12(2); Annex 2. Acknowledgement form under Article 12(3).
14-5-302. Proceeding by minor parent.
A minor parent, or a guardian or other legal representative of a minor parent, may maintain a proceeding on behalf of or for the benefit of the minor's child.
Source: L. 93: Entire article R&RE, p. 1588, § 1, effective January 1, 1995.
Editor's note: This section is similar to former § 14-5-114 as it existed prior to 1993.
COMMENT
A minor parent may maintain a proceeding under UIFSA without the appointment of a guardian ad litem, even if the law of the forum jurisdiction requires a guardian for an in-state case. If a guardian or legal representative has been appointed, he or she may act on behalf of the minor's child in seeking support.
14-5-303. Application of law of this state.
Except as otherwise provided in this article, a responding tribunal of this state shall:
- Apply the procedural and substantive law generally applicable to similar proceedings originating in this state and may exercise all powers and provide all remedies available in those proceedings; and
- Determine the duty of support and the amount payable in accordance with the law and support guidelines of this state.
Source: L. 93: Entire article R&RE, p. 1589, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1250, § 12, effective July 1, 2004.
COMMENT
Historically states have insisted that forum law be applied to support cases whenever possible. This continues to be a key principle of UIFSA. In general, a responding tribunal has the same powers in a proceeding involving parties in a case with interstate or international effect as it has in an intrastate case. This inevitably means that the act is not self-contained; rather, it is supplemented by the forum's statutes and procedures governing support orders. To insure the efficient processing of the huge number of interstate support cases, it is vital that decision makers apply familiar rules of law to the maximum degree possible. This must be accomplished in a manner consistent with the overriding principle of UIFSA that enforcement is of the issuing tribunal's order, and that the responding state does not make the order its own as a condition of enforcing it.
14-5-304. Duties of initiating tribunal.
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Upon the filing of a petition authorized by this article, an initiating tribunal of this state shall forward the petition and its accompanying documents:
- To the responding tribunal or appropriate support enforcement agency in the responding state; or
- If the identity of the responding tribunal is unknown, to the state information agency of the responding state with a request that they be forwarded to the appropriate tribunal and that receipt be acknowledged.
- If requested by the responding tribunal, a tribunal of this state shall issue a certificate or other document and make findings required by the law of the responding state. If the responding tribunal is in a foreign country, upon request the tribunal of this state shall specify the amount of support sought, convert that amount into the equivalent amount in the foreign currency under applicable official or market exchange rate as publicly reported, and provide any other documents necessary to satisfy the requirements of the responding foreign tribunal.
Source: L. 93: Entire article R&RE, p. 1589, § 1, effective January 1, 1995. L. 97: Entire section amended, p. 537, § 6, effective July 1. L. 2003: Entire section amended, p. 1250, § 13, effective July 1, 2004. L. 2015: (b) amended, (HB 15-1198), ch. 173, p. 550, § 15, effective July 1.
Editor's note: This section is similar to former § 14-5-115 as it existed prior to 1993.
COMMENT
Subsection (a) was designed primarily to facilitate interstate enforcement between UIFSA states and URESA and RURESA states, with some applicability to cases involving foreign jurisdictions. Since 1998, by which time UIFSA had been enacted nationwide, the procedure described has gradually become an anachronism. Note, however, that the last RURESA child-support order may not expire until 2017 or 2018. See Prefatory Note.
Subsection (b), however, retains its utility with regard to a support order of a foreign nation. Supplying documentation required by a foreign jurisdiction, which is not otherwise required by UIFSA procedure, is appropriate in the international context. For example, a venerable process in British Commonwealth countries is known as provisional and confirming orders. A "provisional order" is a statement of the nonbinding amount of support being requested by a Canadian tribunal for establishment of a support order by a state responding tribunal. A state responding tribunal will receive information about the amount of support provisionally calculated by a tribunal in Canada. It needs to be borne in mind that a request to establish support from a Canadian tribunal will be accomplished in accordance with the law of the responding state. Thus, the Canadian provisional order is informative, but not binding on the responding tribunal. An order issued by the responding tribunal, whether for the amount suggested in the provisional order or another amount based on the local law of the responding tribunal, is known as a confirming order. Similarly, the initiating state's tribunal, knowing that a provisional order will be required by the Canadian tribunal, is directed to cooperate and provide a statement of the amount of support being provisionally requested.
The initiating tribunal of this state also has a duty to identify the amount of foreign currency equivalent to its request to the Canadian tribunal and a corresponding duty for a responding tribunal to convert the foreign currency into dollars if the foreign initiating tribunal has not done so, Section 305(f). The reference to "the applicable official or market exchange rate" takes into account the present practices of international money markets. A few countries continue to maintain an official exchange rate for their currency. The vast majority of countries recognize the fact that the value of their currency is subject to daily market fluctuations that are reported on the financial pages of many daily newspapers. Thus, in the example described above, a request for a specific amount of support in U.S. dollars, which is to be translated into Canadian dollars on a specific date, will inevitably have a variable value as the foreign currency rises or falls against the U.S. dollar.
Related to Convention: art. 31. Decisions produced by the combined effect of provisional and confirmation orders.
14-5-305. Duties and powers of responding tribunal.
- When a responding tribunal of this state receives a petition or comparable pleading from an initiating tribunal or directly pursuant to section 14-5-301 (b), it shall cause the petition or pleading to be filed and notify the petitioner where and when it was filed.
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A responding tribunal of this state, to the extent not prohibited by other law, may do one or more of the following:
- Establish or enforce a support order, modify a child support order, determine the controlling child support order, or determine parentage of a child;
- Order an obligor to comply with a support order, specifying the amount and the manner of compliance;
- Order income withholding;
- Determine the amount of any arrearages, and specify a method of payment;
- Enforce orders by civil or criminal contempt, or both;
- Set aside property for satisfaction of the support order;
- Place liens and order execution on the obligor's property;
- Order an obligor to keep the tribunal informed of the obligor's current residential address, electronic-mail address, telephone number, employer, address of employment, and telephone number at the place of employment;
- Issue a bench warrant for an obligor who has failed after proper notice to appear at a hearing ordered by the tribunal and enter the bench warrant in any local and state computer systems for criminal warrants;
- Order the obligor to seek appropriate employment by specified methods;
- Award reasonable attorney's fees and other fees and costs; and
- Grant any other available remedy.
- A responding tribunal of this state shall include in a support order issued under this article, or in the documents accompanying the order, the calculations on which the support order is based.
- A responding tribunal of this state may not condition the payment of a support order issued under this article upon compliance by a party with provisions for visitation.
- If a responding tribunal of this state issues an order under this article, the tribunal shall send a copy of the order to the petitioner and the respondent and to the initiating tribunal, if any.
- If requested to enforce a support order, arrears, or judgment or modify a support order stated in a foreign currency, a responding tribunal of this state shall convert the amount stated in the foreign currency to the equivalent amount in dollars under the applicable official or market exchange rate as publicly reported.
Source: L. 93: Entire article R&RE, p. 1589, § 1, effective January 1, 1995. L. 97: (a) and (e) amended, p. 537, § 7, effective July 1. L. 2003: (a), IP(b), and (b)(1) amended and (f) added, p. 1251, § 14, effective July 1, 2004. L. 2015: (b)(1) and (b)(8) amended, (HB 15-1198), ch. 173, p. 550, § 16, effective July 1.
Editor's note: This section is similar to former §§ 14-5-119, 14-5-120, and 14-5-127 as they existed prior to 1993.
COMMENT
This section establishes a wide variety of duties for a responding tribunal. It contains: ministerial functions, subsection (a); judicial functions, subsection (b); and, substantive rules applicable to interstate cases, subsections (c)-(e). Because a responding tribunal may be an administrative agency rather than a court, the act explicitly states that a tribunal is not granted powers that it does not otherwise possess under state law. For example, authority to enforce a support order by contempt generally is limited to courts.
Subsection (a) directs the filing of the documents received without regard to whether an initiating tribunal in another state was involved in forwarding the documentation. It also directs that the individual or entity requesting the filing be notified, but leaves the means of that notification to local law. The advent of a variety of swifter, and perhaps even more reliable, forms of notice in the modern era justifies the deletion of a particular form of notice. For example, many states now authorize notice by telephone facsimile (FAX), or by an express delivery service, and many legal documents are transmitted by electronic mail (email).
Subsection (b) lists duties that, if possessed under state law in connection with intrastate cases, are extended to the responding tribunal in UIFSA cases. Thus, each subdivision purposefully avoids mention of substantive rules. For example, subsection (b)(7) does not identify the type, nature, or priority of liens that may be issued under UIFSA. As is generally true under the act, those details will be determined by applicable state law concerning support enforcement remedies of local orders.
Subsection (c) clarifies that the details of calculating the child-support order are to be included along with the order. Local law generally requires that variation from the child support guidelines must be explained, see 42 U.S.C. § 667; this requirement is extended to interstate cases.
Subsection (d) states that an interstate support order may not be conditioned on compliance with a visitation order. While this may be at variance with state law governing intrastate cases, under a UIFSA proceeding the petitioner generally is not present before the tribunal. This distinction justifies prohibiting visitation issues from being litigated in the context of a support proceeding. All states have enacted some version of either the UCCJA or the UCCJEA providing for resolution of visitation issues in interstate cases.
Subsection (e) introduces the policy determination that the petitioner, the respondent, and the initiating tribunal, if any, shall be kept informed about actions taken by the responding tribunal.
Subsection (f) is designed to facilitate enforcement of a foreign support order. Note that the language directing a conversion to a monetary equivalence in dollars is intended to make clear the equivalence is not a modification of the original order to an absolute dollar figure; rather, satisfaction of the obligation is to be determined by the order-issuing tribunal based on the present dollar value of the currency in which the order is denominated.
Related to Convention: art. 19. Scope of the Chapter; art. 34. Enforcement measures; art. 35. Transfer of funds; art. 43. Recovery of costs.
ANNOTATION
Reference to the Uniform Parentage Act in the Colorado Uniform Interstate Family Support Act simply establishes a method to determine parentage. Therefore the trial court erred in concluding that it had jurisdiction to enter orders granting parenting time. In Interest of R.L.H., 942 P.2d 1386 (Colo. App. 1997).
An order requiring one party to repay or reimburse the other party for overpaid child support qualifies as a "reimbursement", thus district court had subject matter jurisdiction to issue an order regarding overpayments. In re Haddad, 93 P.3d 617 (Colo. App. 2004).
14-5-306. Inappropriate tribunal.
If a petition or comparable pleading is received by an inappropriate tribunal of this state, the tribunal shall forward the pleading and accompanying documents to an appropriate tribunal of this state or another state and notify the petitioner where and when the pleading was sent.
Source: L. 93: Entire article R&RE, p. 1590, § 1, effective January 1, 1995. L. 97: Entire section amended, p. 537, § 8, effective July 1. L. 2003: Entire section amended, p. 1251, § 15, effective July 1, 2004. L. 2015: Entire section amended, (HB 15-1198), ch. 173, p. 551, § 17, effective July 1.
COMMENT
If a [petition] or comparable pleading is received by an inappropriate tribunal of this state, the tribunal shall forward the pleading and accompanying documents to an appropriate tribunal of this state or another state and notify the [petitioner] where and when the pleading was sent. A tribunal receiving UIFSA documents in error is to forward the original documents to their proper destination without undue delay. This section was originally intended to apply both to initiating and responding tribunals receiving such documents, but the practical elimination of the role of initiating tribunals under modern practice now limits the notice requirement to the petitioner, i.e., the individual party or support enforcement agency, that filed (or misfiled) the document directly. For example, if a tribunal is inappropriately designated as the responding tribunal, it shall forward the petition to the appropriate responding tribunal wherever located, if known, and notify the petitioner of its action. Such a procedure is much to be preferred to returning the documents to the petitioner to begin the process anew.
Cooperation of this sort will facilitate the ultimate goals of the act. Although by its terms this section applies only to a tribunal of this state, it can be anticipated that the support enforcement agency will also assist in transferring documents to the appropriate tribunal. Note the section does not contemplate that a state tribunal will forward documents to a tribunal in a foreign country.
14-5-307. Duties of support enforcement agency.
- A support enforcement agency of this state, upon request, shall provide services to a petitioner in a proceeding under this article.
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A support enforcement agency of this state that is providing services to the petitioner shall:
- Take all steps necessary to enable an appropriate tribunal of this state, another state, or a foreign country to obtain jurisdiction over the respondent;
- Request an appropriate tribunal to set a date, time, and place for a hearing;
- Make a reasonable effort to obtain all relevant information, including information as to income and property of the parties;
- Within two days, exclusive of Saturdays, Sundays, and legal holidays, after receipt of notice in a record from an initiating, responding, or registering tribunal, send a copy of the notice to the petitioner;
- Within two days, exclusive of Saturdays, Sundays, and legal holidays, after receipt of communication in a record from the respondent or the respondent's attorney, send a copy of the communication to the petitioner; and
- Notify the petitioner if jurisdiction over the respondent cannot be obtained.
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A support enforcement agency of this state that requests registration of a child support order in this state for enforcement or for modification shall make reasonable efforts:
(1) To ensure that the order to be registered is the controlling order; or
(2) If two or more child support orders exist and the identity of the controlling order has not been determined, to ensure that a request for such a determination is made in a tribunal having jurisdiction to do so.
- A support enforcement agency of this state that requests registration and enforcement of a support order, arrears, or judgment stated in a foreign currency shall convert the amounts stated in the foreign currency into the equivalent amounts in dollars under the applicable official or market exchange rate as publicly reported.
- A support enforcement agency of this state shall issue or request a tribunal of this state to issue a child support order and an income-withholding order that redirect payment of current support, arrears, and interest if requested to do so by a support enforcement agency of another state pursuant to section 14-5-319.
- This article does not create or negate a relationship of attorney and client or other fiduciary relationship between a support enforcement agency or the attorney for the agency and the individual being assisted by the agency.
Source: L. 93: Entire article R&RE, p. 1590, § 1, effective January 1, 1995. L. 97: (b)(4) and (b)(5) amended, p. 537, § 9, effective July 1. L. 2003: Entire section amended, p. 1251, § 16, effective July 1, 2004. L. 2015: (b)(1), (b)(4), (b)(5), and (e) amended, (HB 15-1198), ch. 173, p. 551, § 18, effective July 1.
COMMENT
Federal legislation signed on Sept. 29, 2014 (P.L. 113-183) authorizes states to enact Alternative A or Alternative B of subsection (a). The focus of subsection (a) is on providing services to a petitioner. Either the obligee or the obligor may request services, and that request may be in the context of the establishment of an initial child-support order, enforcement or review and adjustment of an existing child-support order, or a modification of that order (upward or downward). Note that the section does not distinguish between child support and spousal support for purposes of providing services. Note also, the services available may differ significantly; for example, modification of spousal support is limited to the issuing tribunal. See Section 205(f).
Alternative A continues the longstanding rule that this state's support enforcement agency shall provide services upon request to a petitioner seeking relief under this act. Under Alternative B, the support agency may exercise discretion to provide or not provide assistance to an applicant: (1) from a reciprocating country or Convention country who does not apply through the Central Authority of his or her own country, but rather applies directly to the support enforcement agency; and (2) residing overseas in a country other than a reciprocating country or Convention country. The lack of services, of course, may impact the means by which an individual is able to obtain assistance in pursuing an action in the appropriate tribunal.
Subsection (b) responds to the past complaints of many petitioners that they were not properly kept informed about the progress of their requests for services.
Subsection (c) is a procedural clarification reflecting actual practice of the support agencies developed after years of experience with the act. It imposes a duty on all support enforcement agencies to facilitate the UIFSA one-order world by actively searching for cases with multiple orders and obtaining a determination of the controlling order as expeditiously as possible. This agency duty correlates to new Subsection 602(d) regarding the registration process and cases with multiple orders.
Subsection (d) imposes a duty of currency conversion on a support enforcement agency similar to that imposed on an initiating tribunal in Section 304(b).
Read in conjunction with Section 319, subsection (e) requires the state support enforcement agency to facilitate redirection of the stream of child support in order that payments be more efficiently received by the obligee.
Subsection (f) explicitly states that UIFSA neither creates nor rejects the establishment of an attorney-client or fiduciary relationship between the support enforcement agency and a petitioner receiving services from that agency. This once-highly controversial issue is left to otherwise applicable state law, which generally has concluded that attorneys employed by a state support enforcement agency do not form an attorney-client relationship with either the parties or the child as the ultimate obligee.
Related to Convention: art. 35. Transfer of funds.
14-5-308. Duty of attorney general.
- If the attorney general determines that the support enforcement agency is neglecting or refusing to provide services to an individual, the attorney general may order the agency to perform its duties under this article or may provide those services directly to the individual.
- The attorney general may determine that a foreign country has established a reciprocal arrangement for child support with this state and take appropriate action for notification of the determination.
Source: L. 93: Entire article R&RE, p. 1591, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1252, § 17, effective July 1, 2004. L. 2015: (b) amended, (HB 15-1198), ch. 173, p. 551, § 19, effective July 1.
Editor's note: This section is similar to former § 14-5-113 as it existed prior to 1993.
COMMENT
Subsection (b) makes clear that a state has a variety of options in determining the international scope of its IV-D support enforcement program. Of course, a federal declaration that a foreign jurisdiction is a reciprocating country or political subdivision is controlling. See Section 102(5)(A). However, each state may designate an official with authority to make a statewide, binding determination recognizing a foreign country, foreign nation state, or political subdivision as having a reciprocal arrangement with that state. See Section 102(5)(B).
14-5-309. Private counsel.
An individual may employ private counsel to represent the individual in proceedings authorized by this article.
Source: L. 93: Entire article R&RE, p. 1591, § 1, effective January 1, 1995.
COMMENT
The right of a party to retain private counsel in a proceeding brought under UIFSA is explicitly recognized. The failure to clearly recognize that power under the prior uniform acts led to confusion and inconsistent decisions. The Convention implicitly recognizes that the right to employ an attorney is to be available in every Convention country, but does not explicitly mention retaining private counsel. A "competent authority" in Convention terminology is equivalent to a tribunal.
Related to Convention: art. 37. Direct requests to competent authorities.
14-5-310. Duties of state information agency.
- The state department of human services is the state information agency under this article.
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The state information agency shall:
- Compile and maintain a current list, including addresses, of the tribunals in this state which have jurisdiction under this article and any support enforcement agencies in this state and transmit a copy to the state information agency of every other state;
- Maintain a register of names and addresses of tribunals and support enforcement agencies received from other states;
- Forward to the appropriate tribunal in the county in this state in which the obligee who is an individual or the obligor resides, or in which the obligor's property is believed to be located, all documents concerning a proceeding under this article received from another state or a foreign country; and
- Obtain information concerning the location of the obligor and the obligor's property within this state not exempt from execution, by such means as postal verification and federal or state locator services, examination of telephone directories, requests for the obligor's address from employers, and examination of governmental records, including, to the extent not prohibited by other law, those relating to real property, vital statistics, law enforcement, taxation, motor vehicles, driver's licenses, and social security.
Source: L. 93: Entire article R&RE, p. 1591, § 1, effective January 1, 1995. L. 94: (a) amended, p. 2644, § 102, effective July 1. L. 2003: (b)(2) and (b)(3) amended, p. 1252, § 18, effective July 1, 2004. L. 2015: (b)(3) amended, (HB 15-1198), ch. 173, p. 551, § 20, effective July 1.
Editor's note: This section is similar to former § 14-5-118 as it existed prior to 1993.
Cross references: For the legislative declaration contained in the 1994 act amending subsection (a), see section 1 of chapter 345, Session Laws of Colorado 1994.
COMMENT
Subsection (a) identifies the state information agency.
Subsection (b) details the duties of that agency insofar as interstate proceedings are concerned. Subsection (b)(4) does not provide independent access to the information sources or to the governmental documents listed. Because states have different requirements and limitations concerning such access based on differing views of the privacy interests of individual citizens, the agency is directed to use all lawful means under the relevant state law to obtain and disseminate information.
14-5-311. Pleadings and accompanying documents.
- In a proceeding under this article, a petitioner seeking to establish a support order, to determine parentage of a child, or to register and modify a support order of a tribunal of another state or a foreign country must file a petition. Unless otherwise ordered under section 14-5-312, the petition or accompanying documents must provide, so far as known, the name, residential address, and social security numbers of the obligor and the obligee or the parent and alleged parent, and the name, sex, residential address, social security number, and date of birth of each child for whose benefit support is sought or whose parentage is to be determined. Unless filed at the time of registration, the petition must be accompanied by a copy of any support order known to have been issued by another tribunal. The petition may include any other information that may assist in locating or identifying the respondent.
- The petition must specify the relief sought. The petition and accompanying documents must conform substantially with the requirements imposed by the forms mandated by federal law for use in cases filed by a support enforcement agency.
Source: L. 93: Entire article R&RE, p. 1592, § 1, effective January 1, 1995. L. 97: (a) amended, p. 538, § 10, effective July 1. L. 2003: (a) amended, p. 1253, § 19, effective July 1, 2004. L. 2015: (a) amended, (HB 15-1198), ch. 173, p. 552, § 21, effective July 1.
Editor's note: This section is similar to former § 14-5-112 as it existed prior to 1993.
COMMENT
This section establishes the basic requirements for drafting and filing interstate pleadings. Subsection (a) should be read in conjunction with Section 312, which provides for the confidentiality of certain information if disclosure is likely to result in harm to a party or a child. The goal of this section is to improve efficiency of the process by attaching all known support orders to the petition, coupled with the elimination of the requirement that such copies be certified. If a dispute arises over the authenticity of a purported order, the tribunal must, of necessity, sort out conflicting claims at that time. Another improvement is the deletion of the requirement for verified pleadings originated in URESA and carried forward in the original version of UIFSA. Note, however, that a request for registration of a foreign support order for which the Convention is in force is subject to Section 706. This is due to the fact that the list of documents comprising the required record in subsection (a) differs in a measurable degree with Convention articles 11 and 25.
Subsection (b) provides authorization for the use of the federally authorized forms to be used in interstate cases in connection with the IV-D child-support enforcement program and mandates substantial compliance with those forms. Although the use of other forms is not prohibited, standardized documents have resulted in substantial improvement in the efficient processing of UIFSA proceedings. The Convention also contains annexed forms for international use.
Related to Convention: art. 10. Available applications; art. 11. Application contents; art. 12. Transmission, receipt and processing of applications and cases through Central Authorities; art. 25. Documents; Annex 1. Transmittal form under Article 12(2); Annex 2. Acknowledgement form under Article 12(3).
14-5-312. Nondisclosure of information in exceptional circumstances.
If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of specific identifying information, that information shall be sealed and may not be disclosed to the other party or the public. After a hearing in which a tribunal takes into consideration the health, safety, or liberty of the party or child, the tribunal may order disclosure of information that the tribunal determines to be in the interest of justice.
Source: L. 93: Entire article R&RE, p. 1592, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1253, § 20, effective July 1, 2004.
COMMENT
UIFSA (1992) recognized that enforcement of child support across state lines might have an unintended consequence of putting a party or child at risk if domestic violence was involved in the past. This section is a substantial revision of the statutory formulation originally developed in UIFSA (1992). It conforms to the comparable provision in the Uniform Child Custody Jurisdiction and Enforcement Act Section 209. Public awareness of and sensitivity to the dangers of domestic violence has significantly increased since interstate enforcement of support originated. This section authorizes confidentiality in instances where there is a risk of domestic violence or child abduction. Section 712, infra , incorporates language from the Convention to restrict dissemination of personal jurisdiction to protect victims of domestic violence.
Although local law generally governs the conduct of the forum tribunal, state law may not provide for maintaining secrecy about the exact whereabouts of a litigant or other information ordinarily required to be disclosed under state law, i.e., Social Security number of the parties or the child. If so, this section creates a confidentiality provision that is particularly appropriate in light of the intractable problems associated with interstate parental kidnapping, see the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A.
Related to Convention: art. 38. Protection of personal data; art. 39. Confidentiality; art. 40. Non-disclosure of information.
14-5-313. Costs and fees.
- The petitioner may not be required to pay a filing fee or other costs.
- If an obligee prevails, a responding tribunal of this state may assess against an obligor filing fees, reasonable attorney's fees, other costs, and necessary travel and other reasonable expenses incurred by the obligee and the obligee's witnesses. The tribunal may not assess fees, costs, or expenses against the obligee or the support enforcement agency of either the initiating or the responding state or foreign country, except as provided by other law. Attorney's fees may be taxed as costs, and may be ordered paid directly to the attorney, who may enforce the order in the attorney's own name. Payment of support owed to the obligee has priority over fees, costs, and expenses.
- The tribunal shall order the payment of costs and reasonable attorney's fees if it determines that a hearing was requested primarily for delay. In a proceeding under part 6 of this article, a hearing is presumed to have been requested primarily for delay if a registered support order is confirmed or enforced without change.
Source: L. 93: Entire article R&RE, p. 1592, § 1, effective January 1, 1995. L. 2003: (c) amended, p. 1253, § 21, effective July 1, 2004. L. 2015: (b) amended, (HB 15-1198), ch. 173, p. 552, § 22, effective July 1.
Editor's note: This section is similar to former § 14-5-116 as it existed prior to 1993.
COMMENT
Subsection (a) permits either party, i.e., as petitioner, to file without payment of a filing fee or other costs. This provision dates back to UIFSA (1992) when the term "unfunded mandate" was basically unknown.
Subsection (b), however, provides that only the support obligor may be assessed the authorized costs and fees by a tribunal. Federal law permits a state support enforcement agency to charge limited fees and to recover administrative costs from applicants for Title IV-D services, but many states have opted not to do so, or only to seek recovery from the obligor.
Subsection (c) provides a sanction to deal with a frivolous contest regarding compliance with an interstate withholding order, registration of a support order, or comparable delaying tactics regarding an appropriate enforcement remedy.
Related to Convention: art. 14. Effective access to procedures; art. 43. Recovery of costs.
14-5-314. Limited immunity of petitioner.
- Participation by a petitioner in a proceeding under this article before a responding tribunal, whether in person, by private attorney, or through services provided by the support enforcement agency, does not confer personal jurisdiction over the petitioner in another proceeding.
- A petitioner is not amenable to service of civil process while physically present in this state to participate in a proceeding under this article.
- The immunity granted by this section does not extend to civil litigation based on acts unrelated to a proceeding under this article committed by a party while physically present in this state to participate in the proceeding.
Source: L. 93: Entire article R&RE, p. 1593, § 1, effective January 1, 1995. L. 2003: (a) and (c) amended, p. 1254, § 22, effective July 1, 2004.
COMMENT
Under subsection (a), direct or indirect participation in a UIFSA proceeding does not subject a petitioner to an assertion of personal jurisdiction over the petitioner by the forum state in other litigation between the parties. The primary object of this prohibition is to preclude joining disputes over child custody and visitation with the establishment, enforcement, or modification of child support. This prohibition strengthens the ban on visitation litigation established in Section 305(d). A petition for affirmative relief under UIFSA limits the jurisdiction of the tribunal to the boundaries of the support proceeding. In sum, proceedings under UIFSA are not suitable vehicles for the relitigation of all of the issues arising out of a foreign divorce or custody case. Only enforcement or modification of the support portion of such decrees or orders are relevant. Other issues, such as custody and visitation, or matters relating to other aspect of the divorce decree, are collateral and have no place in a UIFSA proceeding.
Subsection (b) grants a litigant a variety of limited immunity from service of process during the time that party is physically present in a state for a UIFSA proceeding. The immunity provided is in no way comparable to diplomatic immunity, however, which should be clear from reading subsection (c) in conjunction with the other subsections.
Subsection (c) does not extend immunity to civil litigation unrelated to the support proceeding which stems from contemporaneous acts committed by a party while present in the state for the support litigation. For example, a petitioner involved in an automobile accident or a contract dispute over the cost of lodging while present in the state does not have immunity from a civil suit on those issues.
ANNOTATION
While a petition for relief under UIFSA limits the jurisdiction of the tribunal to the boundaries of the support proceeding, a claim of overpayment of child support is still within the boundaries of the proceeding. In re Haddad, 93 P.3d 617 (Colo. App. 2004).
Section 14-5-607 (b) conferred personal jurisdiction over another state's child support enforcement agency that continued to collect withholdings from plaintiff's wages under the Uniform Interstate Family Support Act (UIFSA), contrary to a previous Colorado court order vacating the other state's judgment upon which the wage assignment was based. Vogan v. County of San Diego, 193 P.3d 336 (Colo. App. 2008).
While this section protects a petitioner participating in a UIFSA proceeding before a responding tribunal from being subject to personal jurisdiction in another proceeding, the statute does not prevent the Colorado court from the continued exercise of subject matter and personal jurisdiction to enforce its prior order. There are no due process concerns where another state availed itself of the provisions of UIFSA to reach plaintiff's earnings in Colorado. Section 14-5-607 (b) allows a court to enter "other appropriate orders", including orders related to plaintiff's claims for injunctive relief and restitution based upon defendant's continued collection of child support under the voided order. Vogan v. County of San Diego, 193 P.3d 336 (Colo. App. 2008).
Although this section does not confer personal jurisdiction over plaintiff's civil theft claim with respect to defendant's collection of child support despite the voided wage assignment, the Colorado long-arm statute confers jurisdiction where plaintiff was harmed by defendant's tortious acts within this state and where the exercise of personal jurisdiction comports with traditional notions of fair play and substantial justice. Vogan v. County of San Diego, 193 P.3d 336 (Colo. App. 2008).
14-5-315. Nonparentage as defense.
A party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under this article.
Source: L. 93: Entire article R&RE, p. 1593, § 1, effective January 1, 1995.
Editor's note: This section is similar to former § 14-5-128 as it existed prior to 1993.
COMMENT
Arguably this section does no more than restate the basic principle of res judicata. However, there is a great variety of state law regarding presumptions of parentage and available defenses after a prior determination of parentage. As long as a proceeding is brought in an appropriate forum, this section is intended neither to discourage nor encourage collateral attacks in situations in which the law of another jurisdiction is at significant odds with local law. If a collateral attack on a parentage decree is permissible under the law of the issuing jurisdiction, such a proceeding must be pursued in that forum and not in a UIFSA proceeding.
This section mandates that a parentage decree rendered by another tribunal "pursuant to law" is not subject to collateral attack in a UIFSA proceeding. Of course, an attack on an alleged final order based on a fundamental constitutional defect in the parentage decree is permissible in the forum state. For example, a responding tribunal may find that another tribunal acted unconstitutionally by denying a party due process due to a failure of notice and opportunity to be heard or a lack of personal jurisdiction over a party who did not answer or appear. Insofar as the latter ground is concerned, the universal enactment of the long-arm statute asserting personal jurisdiction over a respondent if the child "may have been conceived" in the forum state may greatly reduce successful attacks on a parentage determination. See Section 201(a)(6).
Similarly, the law of the issuing state or foreign country may provide for a determination of parentage based on certain specific acts of the obligor, such as voluntarily acknowledging parentage as a substitute for a decree. UIFSA also is neutral regarding a collateral attack on such a parentage determination filed in the issuing tribunal. In the meantime, however, the responding tribunal must give effect to such an act of acknowledgment of parentage if it is recognized as determinative in the issuing state or foreign country. The consistent theme is that a collateral attack on a parentage determination cannot be made in a UIFSA proceeding other than on fundamental due-process grounds.
ANNOTATION
Annotator's note: Since § 14-5-315 is similar to § 14-5-128 as it existed prior to the 1993 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.
Determination of paternity in divorce or annulment action. The parentage of a child is not an issue necessarily decided in a divorce or annulment action. However, where, as a part of a divorce action, the court hears evidence, makes a child support order, and by necessary implication has determined the paternity of the child, this determination is res judicata at least between the spouses. McNeece v. McNeece, 39 Colo. App. 160, 562 P.2d 767 (1977).
Applicability of doctrine of res judicata. Failure to raise the defense of nonpaternity during dissolution proceedings bars a presumed father from collaterally attacking the determination of paternity implicitly supporting award of child support incident to such dissolution proceedings brought under URESA. State ex rel. Daniels v. Daniels, 817 P.2d 632 (Colo. App. 1991).
14-5-316. Special rules of evidence and procedure.
- The physical presence of a nonresident party who is an individual in a tribunal of this state is not required for the establishment, enforcement, or modification of a support order or the rendition of a judgment determining parentage of a child.
- An affidavit, a document substantially complying with federally mandated forms, or a document incorporated by reference in any of them, which would not be excluded under the hearsay rule if given in person, is admissible in evidence if given under penalty of perjury by a party or witness residing outside this state.
- A copy of the record of child support payments certified as a true copy of the original by the custodian of the record may be forwarded to a responding tribunal. The copy is evidence of facts asserted in it, and is admissible to show whether payments were made.
- Copies of bills for testing for parentage of a child, and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least ten days before trial, are admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary, and customary.
- Documentary evidence transmitted from outside this state to a tribunal of this state by telephone, telecopier, or other electronic means that do not provide an original record may not be excluded from evidence on an objection based on the means of transmission.
- In a proceeding under this article, a tribunal of this state shall permit a party or witness residing outside this state to be deposed or to testify under penalty of perjury by telephone, audiovisual means, or other electronic means at a designated tribunal or other location. A tribunal of this state shall cooperate with other tribunals in designating an appropriate location for the deposition or testimony.
- If a party called to testify at a civil hearing refuses to answer on the ground that the testimony may be self-incriminating, the trier of fact may draw an adverse inference from the refusal.
- A privilege against disclosure of communications between spouses does not apply in a proceeding under this article.
- The defense of immunity based on the relationship of husband and wife or parent and child does not apply in a proceeding under this article.
- A voluntary acknowledgment of paternity, certified as a true copy, is admissible to establish parentage of the child.
Source: L. 93: Entire article R&RE, p. 1593, § 1, effective January 1, 1995. L. 2003: (a), (b), (e), and (f) amended and (j) added, p. 1254, § 23, effective July 1, 2004. L. 2015: (a), (b), (d), (e), and (f) amended, (HB 15-1198), ch. 173, p. 552, § 23, effective July 1.
Editor's note: This section is similar to former §§ 14-5-121 and 14-5-124 as they existed prior to 1993.
Cross references: For privileged evidence of husband and wife generally, see §§ 13-90-107 and 13-90-108.
COMMENT
Note that the special rules of evidence and procedure are applicable to a party or witness "residing outside this state," substituting for "residing in another state." This is the broadest application possible because the utility of these special rules is not limited to parties in other states, or in foreign countries, as defined in the act, but extends to an individual residing anywhere. This extremely broad application of the special rules is to facilitate the processing of a support order in this state or elsewhere. This section combines many time-tested procedures with innovative methods for gathering evidence in interstate cases.
Subsection (a) ensures that a nonresident petitioner or a nonresident respondent may fully participate in a proceeding under the act without being required to appear personally. Subsection (b) recognizes the pervasive effect of the federal forms promulgated by the Office of Child Support Enforcement, which replace the necessity of swearing to a document "under oath" with the simpler requirement that the document be provided "under penalty of perjury," as has long been required by federal income tax Form 1040.
Subsections (b) through (f) provide special rules of evidence designed to take into account the virtually unique nature of the interstate proceedings under this act. These subsections provide exceptions to the otherwise guiding principle of UIFSA, i.e., local procedural and substantive law should apply. Because the out-of-state party, and that party's witnesses, necessarily do not ordinarily appear in person at the hearing, deviation from the ordinary rules of evidence is justified in order to assure that the tribunal will have available to it the maximum amount of information on which to base its decision. The intent throughout these subsections is to eliminate by statute as many potential hearsay problems as possible in interstate litigation, with the goal of providing each party with the means to present evidence, even if not physically present.
Subsection (d) provides a simplified means for proving health-care expenses related to the birth of a child. Because ordinarily the amount of these charges is not in dispute, this is designed to obviate the cost of having health-care providers appear in person or of obtaining affidavits of business records from each provider.
Subsections (e) and (f) encourage tribunals and litigants to take advantage of modern methods of communication in interstate support litigation; most dramatically, the out-of-state party is authorized to testify by the full panoply of audio and audiovisual technologies currently available for direct personal communication and to supply documents by fax, email, or direct transfer between computers or other electronic devices. One of the most useful applications of these subsections is to provide an enforcing tribunal with up-to-date information concerning the amount of arrears.
Subsection (f) unambiguously mandates that telephone or audiovisual testimony in depositions and hearings must be allowed. It anticipates that every courtroom is equipped with a speakerphone. In a day when laptop computers often come equipped with a video camera, live testimony from a remote location is not only possible, but almost as reliable as if the testimony was given in person. No doubt a demeanor is better judged in person than by viewing a video screen, but the latter is certainly preferable to only a disembodied voice.
Subsection (g) codifies the rule in effect in many states that in civil litigation an adverse inference may be drawn from a litigant's silence that restriction of the Fifth Amendment does not apply. A related analogy is that a refusal to submit to genetic testing may be admitted into evidence and a trier of fact may resolve the question of parentage against the refusing party on the basis of an inference that the results of the test would have been unfavorable to the interest of that party.
Subsection (j), new in 2001, complies with the federally mandated procedure that every state must honor the "acknowledgment of paternity" validly made in another state.
Related to Convention: art. 13. Means of communication; art. 14. Effective access to procedures; art. 29. Physical presence of the child or the applicant not required.
ANNOTATION
Annotator's note: Since § 14-5-316 is similar to §§ 14-5-121 and 14-5-124 as they existed prior to the 1993 repeal and reenactment of this article, relevant cases construing those provisions have been included in the annotations to this section.
Full faith and credit must be given to another state's final order for arrearages entered under RURESA, § 14-5-101 et seq. In re Sabala, 802 P.2d 1163 (Colo. App. 1990).
Child support installment under California decree became an enforceable judgment in Colorado where husband made support payments in amounts less than the amount ordered by such decree. In re Barone, 895 P.2d 1075 (Colo. App. 1994).
The doctrine of equitable estoppel may properly be applied to afford relief from accrued arrearages in child support if the party asserting the claim demonstrates reasonable reliance, to the party's detriment, upon the acts or representations of the other person, and lack of knowledge or convenient means of knowing the facts. In re Dennin and Lohf, 811 P.2d 449 (Colo. App. 1991).
Eventual and belated compliance with a prior support order may be a defense to an action, but each case must be decided on its own facts and circumstances. Jackson v. Jackson, 157 Colo. 564 , 404 P.2d 281 (1965).
It may be a defense if the trial court chooses not to enter an order under the action brought pursuant to the uniform act. Jackson v. Jackson, 157 Colo. 564 , 404 P.2d 281 (1965).
Where denial of continuance not prejudicial. Where the trial court has before it the affidavits filed in the initiating state, as well as the deposition of the absent obligee, and the obligor has declined the court's offer to provide a subpoena duces tecum in conjunction with letters rogatory so the obligor could obtain financial documents from the obligee, there is no prejudice resulting from the trial court's denial of the obligor's request for a continuance. Rohrer v. Kane, 44 Colo. App. 85, 609 P.2d 1121 (1980).
Child's right to support is unaffected by misconduct of his parents, and when a court conditions the disbursement of child support payments upon the custodial parent's complying with visitation orders, the court errs as a matter of law. People ex rel. Meveren v. District Court, 638 P.2d 1371 (Colo. 1982).
Applied in Dewar v. LeNard, 653 P.2d 82 (Colo. App. 1982).
14-5-317. Communications between tribunals.
A tribunal of this state may communicate with a tribunal outside this state in a record, or by telephone, electronic mail, or other means, to obtain information concerning the laws, the legal effect of a judgment, decree, or order of that tribunal, and the status of a proceeding. A tribunal of this state may furnish similar information by similar means to a tribunal outside this state.
Source: L. 93: Entire article R&RE, p. 1594, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1254, § 24, effective July 1, 2004. L. 2015: Entire section amended, (HB 15-1198), ch. 173, p. 553, § 24, effective July 1.
COMMENT
This section explicitly authorizes a state tribunal to communicate with a tribunal of another state, foreign country, or in a foreign nation state not defined as a foreign country. It was derived from UCCJA § 110 authorizing such communications to facilitate a fully informed decision. The amendment in UIFSA (2008) not only expands the authorization to worldwide scope, i.e., "outside this state," but specifically adds email to the select modes of communication. Broad cooperation by tribunals is strongly encouraged in order to expedite establishment and enforcement of a support order. American judges are very familiar with this procedure. It remains to be seen whether overseas communication between judges will be received with similar cooperation.
14-5-318. Assistance with discovery.
A tribunal of this state may:
- Request a tribunal outside this state to assist in obtaining discovery; and
- Upon request, compel a person over which it has jurisdiction to respond to a discovery order issued by a tribunal outside this state.
Source: L. 93: Entire article R&RE, p. 1594, § 1, effective January 1, 1995. L. 2015: Entire section amended, (HB 15-1198), ch. 173, p. 553, § 25, effective July 1.
COMMENT
This section takes a logical step to facilitate interstate and international cooperation by enlisting the power of the forum to assist a tribunal of another state or country with the discovery process. The grant of authority is quite broad, enabling the tribunal of the enacting state to fashion its remedies to facilitate discovery consistent with local practice.
14-5-319. Receipt and disbursement of payments.
- A support enforcement agency or tribunal of this state shall disburse promptly any amounts received pursuant to a support order, as directed by the order. The agency or tribunal shall furnish to a requesting party or tribunal of another state or a foreign country a certified statement by the custodian of the record of the amounts and dates of all payments received.
-
If neither the obligor, nor the obligee who is an individual, nor the child resides in this state, upon request from the support enforcement agency of this state or another state, the support enforcement agency of this state or a tribunal of this state shall:
- Direct that the support payment be made to the support enforcement agency in the state in which the obligee is receiving services; and
- Issue and send to the obligor's employer a conforming income-withholding order or an administrative notice of change of payee, reflecting the redirected payments.
- The support enforcement agency of this state receiving redirected payments from another state pursuant to a law similar to subsection (b) of this section shall furnish to a requesting party or tribunal of the other state a certified statement by the custodian of the record of the amount and dates of all payments received.
Source: L. 93: Entire article R&RE, p. 1594, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1255, § 25, effective July 1, 2004. L. 2015: (a) amended, (HB 15-1198), ch. 173, p. 553, § 26, effective July 1.
COMMENT
The first sentence of subsection (a) is truly hortatory in nature, although its principle is implemented insofar as support enforcement agencies are required by federal regulations promulgated by the Office of Child Support Enforcement (OCSE). The second sentence confirms the duty of the agency or tribunal to furnish payment information in interstate or international cases.
As an exception to the usual provisions in Article 3, subsections (b) and (c) are applicable only to interstate cases. The procedure described was inspired by the Office of Child Support Enforcement (OCSE), U.S. Department of Health and Human Services, and is designed to speed up receipt of support payments. Support enforcement agencies are directed to cooperate in the efficient and expeditious collection and transfer of child support from obligor to obligee. Over two-thirds of all child support payments currently are made through direct income withholding actions, whereby an out-of-state IV-D agency sends direct notice to an employer in the obligor's state to withhold funds to satisfy the support obligation. Nonetheless, this section remains viable for those situation in which the direct withholding encounters a glitch. Further, there are ongoing problems in states not having income withholding payments go to the state disbursement unit. This section is intended to solve the problem by directing the payments to the most logical disbursement unit, i.e., the state with continuing exclusive jurisdiction.
PART 4 ESTABLISHMENT OF SUPPORT ORDER OR DETERMINATION OF PARENTAGE
COMMENT
A fundamental principle of U.S. jurisprudence is that our courts are open to litigants with a valid cause of action. This article makes clear this principle applies to support actions, whether initiated by a resident of the United States or of a foreign nation.
14-5-401. Establishment of support order.
-
If a support order entitled to recognition under this article has not been issued, a responding tribunal of this state with personal jurisdiction over the parties may issue a support order if:
- The individual seeking the order resides outside this state; or
- The support enforcement agency seeking the order is located outside this state.
- Identified as the father of the child through genetic testing;
- An alleged father who has declined to submit to genetic testing;
- Shown by clear and convincing evidence to be the father of the child;
- An acknowledged father as provided by section 19-4-105 (1)(e), C.R.S.;
- The mother of the child; or
- An individual who has been ordered to pay child support in a previous proceeding and the order has not been reversed or vacated.
-
The tribunal may issue a temporary child support order if the tribunal determines that such an order is appropriate and the individual ordered to pay is:
(1) A presumed father of the child;
(2) Petitioning to have his paternity adjudicated;
- Upon finding, after notice and opportunity to be heard, that an obligor owes a duty of support, the tribunal shall issue a support order directed to the obligor and may issue other orders pursuant to section 14-5-305.
Source: L. 93: Entire article R&RE, p. 1594, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1255, § 26, effective July 1, 2004. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 553, § 27, effective July 1.
Editor's note: This section is similar to former § 14-5-105 as it existed prior to 1993.
COMMENT
This section authorizes a responding tribunal of this state to issue temporary and permanent support orders binding on an obligor over whom the tribunal has personal jurisdiction when the person or entity requesting the order is "outside this state," i.e., anywhere else in the world. UIFSA does not permit such orders to be issued when another support order entitled to recognition exists, thereby prohibiting a second tribunal from establishing another support order and the accompanying continuing, exclusive jurisdiction over the matter. See Sections 205 and 206.
Related to Convention: art. 11. Application contents; art. 14. Effective access to procedures; art. 15. Free legal assistance for child support applications; art. 16. Declaration to permit use of child-centered means test; art. 17. Applications not qualifying under 15 or 16; art. 20. Bases for recognition and enforcement; art. 25. Documents; art. 27. Findings of fact; art. 28. No review of the merits; art. 37. Direct requests to competent authorities; art. 56. Transitional provisions.
ANNOTATION
Annotator's note: Since § 14-5-401 is similar to § 14-5-105 as it existed prior to the 1993 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.
No independent duty of support. This article does not create an independent duty of support but only a means of enforcing a duty arising out of either a foreign support order or the law of the state where the obligor resides. Com. of Pennsylvania v. Barta, 790 P.2d 895 (Colo. App. 1990).
Applied in County of Clearwater v. Petrash, 41 Colo. App. 143, 589 P.2d 1370 (1978), aff'd in part and rev'd on other grounds, 198 Colo. 231 , 598 P.2d 138 (1979).
14-5-402. Proceeding to determine parentage.
A tribunal of this state authorized to determine parentage of a child may serve as a responding tribunal in a proceeding to determine parentage of a child brought under this article or a law or procedure substantially similar to this article.
Source: L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 554, § 27, effective July 1.
COMMENT
This article authorizes a "pure" parentage action in the interstate context, i.e., an action not joined with a claim for support. The mother, an alleged father of a child, or a support enforcement agency may bring such an action. Typically an action to determine parentage across a state line or international border will also seek to establish a support order. See Section 401. An action to establish parentage under UIFSA is to be treated identically to such an action brought in the responding state.
In a departure from the rest of this act, in UIFSA (2001) the term "tribunal" was replaced by "court" in this section. The several states have a variety of combinations of judicial or administrative entities that are authorized to establish, enforce, and modify a child-support order. Because the Uniform Parentage Act (UPA) (2000) § 104 restricts parentage determinations to "a court," see UPA (2000) § 104, the drafters took the view that only a judicial officer should determine parentage as a matter of public policy. This conclusion was in error insofar as some states are concerned and is reversed in this iteration of the act.
Related to Convention: art. 2. Scope; art. 6. Specific functions of Central Authorities; art. 10. Available applications.
PART 5 ENFORCEMENT OF ORDER OF ANOTHER STATE WITHOUT REGISTRATION
Editor's note: This article was repealed and reenacted in 1993, and this part 5 was subsequently amended with relocations in 1997, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this part 5 prior to 1997, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume and the editor's note following the article heading. Former C.R.S. section numbers prior to 1997 are shown in editor's notes following those sections that were relocated.
INTRODUCTORY COMMENT
This article governs direct filing of an income withholding order from one state to an employer in another state. Except as provided in Section 507, the provisions of this article only apply to an interstate case and do not apply to an income-withholding order from a foreign country. While U.S. employers routinely enforce sister state income- withholding orders, enforcement of the wide variety of possible foreign support orders would provide too many complexities and challenges to justify requiring an employer to interpret and enforce an ostensible foreign income-withholding order. Indeed, income- withholding orders from a foreign country are quite rare at this time, although instances of that enforcement remedy probably will increase in the future.
14-5-501. Employer's receipt of income-withholding order of another state.
An income-withholding order issued in another state may be sent by or on behalf of the obligee, or by the support enforcement agency, to the person defined as the obligor's employer under the income-withholding law of this state without first filing a petition or comparable pleading or registering the order with a tribunal of this state.
Source: L. 97: Entire part amended with relocations, p. 538, § 11, effective July 1; entire section amended, p. 1263, § 5, effective July 1. L. 2000: Entire section amended, p. 1709, § 4, effective July 1. L. 2003: Entire section amended, p. 1256, § 27, effective July 1, 2004.
Editor's note: This section was formerly numbered as § 14-5-501 IP(a), and the other provisions of former § 14-5-501 were relocated to § 14-5-502 in 1997.
Cross references: For the legislative declaration contained in the 1997 act amending this section, see section 1 of chapter 236, Session Laws of Colorado 1997.
COMMENT
In 1984 Congress mandated that all states adopt procedures for enforcing income-withholding orders of sister states. Direct recognition by the out-of-state obligor's employer of a withholding order issued by another state long was sought by support enforcement associations and other advocacy groups. UIFSA (1992) recognized such a procedure. This article was extensively amended in 1996, but was the subject only of clarifying amendments in 2001.
Section 501 is deliberately written in the passive voice; the act does not restrict those who may send an income-withholding order across state lines. Although the sender will ordinarily be a child support enforcement agency or the obligee, the obligor or any other person may supply an employer with the income-withholding order. "Sending a copy" of a withholding order to an employer is clearly distinguishable from "service" of that order on the same employer. Service of an order necessarily intends to invoke a tribunal's authority over an employer doing business in the state. Thus, for there to be valid "service" of a withholding order on an employer in a state, the tribunal must have authority to bind the employer. In most cases, this requires the assertion of the authority of a local responding tribunal in a "registration for enforcement" proceeding. In short, the formality of "service" defeats the whole purpose of direct income withholding across state lines.
The process contemplated in this article is direct "notification" of an employer in another state of a withholding order without the involvement of initiating or responding tribunals. Therefore, receipt of a copy of a withholding order by facsimile, regular first class mail, registered or certified mail, or any other type of direct notice is sufficient to provide the requisite notice to trigger direct income withholding in the absence of a contest by the employee-obligor. This process is now widely used by not only child support enforcement agencies, but also by private collection agencies or private attorneys acting on behalf of obligees.
Except as provided in Section 507, Administrative Enforcement of Orders, none of the sections in Article 5 are intended to apply to foreign support orders. While it is appropriate for U.S. employers to enforce sister state income-withholding orders routinely, enforcement of the wide variety of possible foreign support orders provides too many complexities and challenges to require an employer to interpret and enforce ostensible foreign income-withholding orders.
14-5-502. Employer's compliance with income-withholding order of another state.
- Upon receipt of an income-withholding order, the obligor's employer shall immediately provide a copy of the order to the obligor.
- The employer shall treat an income-withholding order issued in another state which appears regular on its face as if it had been issued by a tribunal of this state.
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Except as otherwise provided in subsection (d) of this section and section 14-5-503 the employer shall withhold and distribute the funds as directed in the withholding order by complying with terms of the order which specify:
- The duration and amount of periodic payments of current child support, stated as a sum certain;
- The person designated to receive payments and the address to which the payments are to be forwarded;
- Medical support, whether in the form of periodic cash payment, stated as a sum certain, or ordering the obligor to provide health insurance coverage for the child under a policy available through the obligor's employment;
- The amount of periodic payments of fees and costs for a support enforcement agency, the issuing tribunal, and the obligee's attorney, stated as sums certain; and
- The amount of periodic payments of arrearages and interest on arrearages, stated as sums certain.
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An employer shall comply with the law of the state of the obligor's principal place of employment for withholding from income with respect to:
(1) The employer's fee for processing an income-withholding order;
(2) The maximum amount permitted to be withheld from the obligor's income; and
(3) The times within which the employer must implement the withholding order and forward the child support payment.
Source: L. 97: Entire part amended with relocations, p. 539, § 11, effective July 1; (b) amended, p. 1264, § 6, effective July 1. L. 98: (b) amended, p. 753, § 1, effective July 1. L. 2000: (b) amended, p. 1709, § 5, effective July 1. L. 2003: (c)(2) amended, p. 1256, § 28, effective July 1, 2004.
Editor's note: This section was formerly numbered as § 14-5-501 (a)(1), (a)(2), and (a)(3), and the former § 14-5-502 was relocated to § 14-5-507.
Cross references: For the legislative declaration contained in the 1997 act amending subsection (b), see section 1 of chapter 236, Session Laws of Colorado 1997.
COMMENT
In 1996 major employers and national payroll associations urged NCCUSL to supply more detail regarding the rights and duties of an employer on receipt of an income-withholding order from another state. The Conference obliged with amendments to UIFSA establishing a series of steps for employers to follow.
When an employer receives an income withholding order from another state, the first step is to notify the employee that an income withholding order has been received naming the employee as the obligor of child support, and that income withholding will begin within the time frame specified by local law. In other words, the employer will initially proceed just as if the withholding order had been received from a tribunal of the employer's state. It is the responsibility of the employee to take whatever protective measures are necessary to prevent the withholding if the employee asserts a defense as provided in Section 506, infra .
At this point neither an initiating nor a responding tribunal is directly involved. The withholding order may have been forwarded by the obligee, the obligee's attorney, or the out-of-state IV-D agency. In fact, there is no prohibition against anyone sending a valid copy of an income-withholding order, even a stranger to the litigation, such as the child's grandparent. Subsection (a) does not specify the method for sending this relatively informal notice for direct income withholding, but rather makes the assumption that the employer's communication to the employee regarding receipt of the order will cause an employee-obligor to act to prevent a wrongful invasion of his or her income if it is not owed as current child support or arrears.
Subsection (b) directs an employer of the enacting state to recognize a withholding order of a sister state, subject to the employee's right to contest the validity of the order or its enforcement. Prior to the promulgation of UIFSA, agencies in several states adopted a procedure of sending direct withholding requests to out-of-state employers. A contemporaneous study by the federal General Accounting Office reported that employers in a second state routinely recognized withholding orders of sister states despite an apparent lack of statutory authority to do so. UIFSA marked the first official sanction of this practice. Subsection (b) does not define "regular on its face," but the term should be liberally construed, see U.S. v. Morton , 467 U.S. 822 (1984) ("legal process regular on its face"). The rules governing intrastate procedure and defenses for withholding orders will apply to interstate orders.
Subsection (c) answered employers' complaints that insufficient direction for action was given by the original UIFSA. Prior to the 1996 amendments an employer was merely told to "distribute the funds as directed in the withholding order." This section clarifies the terms of the out-of-state order with which the employer must strictly comply. As a general principle, an employer is directed to comply with the specific terms contained in the order, but there are exceptions. Moreover, many income-withholding orders received at that time did not provide the detail necessary for the employer to comply with every directive. Since then, however, the long-anticipated federal forms were promulgated throughout 1997 and 1998, with periodic updates to the present time. Most recently, the text of income withholding orders for child support is fast conforming to a nationwide norm. To the extent that an order is silent, the employer is not required to respond to unstated demands of the issuing tribunal. Formerly, employers often were so concerned about ambiguous or incomplete orders that they telephoned child support enforcement agencies in other states to attempt to understand and comply with unstated terms. Employers should not be expected to become investigators or shoulder the responsibility of learning the law of 50 states.
Subsection (c)(1) directs that the amount and duration of periodic payments of current child support must be stated in a sum certain in order to elicit compliance. The amount of current support and duration of the support obligation are fixed by the controlling order and should be stated in the withholding order so that the employer is informed of the date on which the withholding is anticipated to terminate. The "sum certain" requirement is crucial to facilitating the employer's compliance. For example, an order for a "percentage of the obligor's net income," does not satisfy this requirement and is not entitled to compliance from an employer receiving an interstate income-withholding order.
Subsection (c)(2) states the obvious: information necessary for compliance must be clearly stated. For example, the destination of the payments must correspond to the destination originally designated or subsequently authorized by the issuing tribunal, such as by the redirection of payments pursuant to Section 319, supra .
Subsection (c)(3) provides that medical support for the child must be stated either by a periodic cash payment or, alternatively, by an order directing the employee-obligor to provide health insurance coverage from his employment. In the absence of an order for payment of a sum certain, issuance of an order for medical support as child support is required to ensure the employer enrolls the obligor's child for coverage if medical insurance is available through the obligor's employment. Failure to enroll the child should elicit, at the least, registration of an order for enforcement in the responding state, to be implemented by an order of a tribunal directing either the employee or the employer to comply to furnish insurance coverage for the child. If the employer is so directed by a medical support order, enrollment of the child in the health care plan at the employee-obligor's expense is not dependent on the obligor's consent, any more than withholding a sum certain from the obligor's income is subject to a veto. It is up to the employee-obligor to assert any defense to prevent the employer from abiding by the medical support order.
Subsection (c)(4) identifies certain costs and fees incurred in conjunction with the support enforcement that may be added to the withholding order.
Subsection (c)(5) requires that the amount of periodic payments for arrears and interest on arrears also must be stated as a sum certain. If the one-order system is to function properly, the issuing tribunal ultimately must be responsible to account for payments and maintain the record of arrears and interest rate on arrears. Full compliance with the support order will only be achieved when the issuing tribunal determines that the obligation no longer exists. The amount of periodic payments for arrears is also fixed by the controlling order unless the law of the issuing state or the state where the order is being enforced provides a procedure for redetermination of the amount.
Subsection (d) identifies those narrow provisions in which the law of the employee's work state applies, rather than the law of the issuing state. A large employer will almost certainly have a number of employees subject to income-withholding orders. From the employer's perspective, the procedural requirements for compliance should be uniform for all of those employees. Certain issues should be matters for the law of the employee's work state, such as the employer's fee for processing, the maximum amount to be withheld, and the time in which to comply. The latter necessarily includes the frequency with which income withholding must occur. This is also consistent with regard to the tax consideration imposed by choice of law considerations. The only element in the list of local laws identified in subsection (d) which stirred any controversy whatsoever was the fact that the maximum amount permitted to be withheld is to be subject to the law of the employee's work state. Demands of equal treatment for all obligees, plus the practical concern that large employers require uniform computer programming mandate this solution.
14-5-503. Employer's compliance with two or more income-withholding orders.
If an obligor's employer receives two or more income-withholding orders with respect to the earnings of the same obligor, the employer satisfies the terms of the orders if the employer complies with the law of the state of the obligor's principal place of employment to establish the priorities for withholding and allocating income withheld for two or more child support obligees.
Source: L. 97: Entire part amended with relocations, p. 540, § 11, effective July 1. L. 2003: Entire section amended, p. 1256, § 29, effective July 1, 2004.
COMMENT
Consistent with the act's general problem-solving approach, the employer is directed to deal with multiple income orders for multiple families in the same manner as required by local law for orders of the forum state.
In addition to income withholding orders issued by tribunals of other states, state support enforcement agencies may also issue income withholding orders to enforce foreign child-support orders.
14-5-504. Immunity from civil liability.
An employer that complies with an income-withholding order issued in another state in accordance with this article is not subject to civil liability to an individual or agency with regard to the employer's withholding of child support from the obligor's income.
Source: L. 97: Entire part amended with relocations, p. 540, § 11, effective July 1. L. 2015: Entire section amended, (HB 15-1198), ch. 173, p. 554, § 28, effective July 1.
COMMENT
Because employer cooperation is a key element in interstate child support enforcement, it is sound policy to state explicitly that an employer who complies with an income-withholding order from another state is immune from civil liability.
14-5-505. Penalties for noncompliance.
An employer that willfully fails to comply with an income-withholding order issued in another state and received for enforcement is subject to the same penalties that may be imposed for noncompliance with an order issued by a tribunal of this state.
Source: L. 97: Entire part amended with relocations, p. 540, § 11, effective July 1. L. 2015: Entire section amended, (HB 15-1198), ch. 173, p. 554, § 29, effective July 1.
COMMENT
Only an employer who willfully fails to comply with an interstate order will be subject to enforcement procedures. Local law is the appropriate source for the applicable sanctions and other remedies available under state law.
14-5-506. Contest by obligor.
- An obligor may contest the validity or enforcement of an income-withholding order issued in another state and received directly by an employer in this state by registering the order in a tribunal of this state and filing a contest to that order as provided in part 6 of this article, or otherwise contesting the order in the same manner as if the order had been issued by a tribunal of this state.
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The obligor shall give notice of the contest to:
- A support enforcement agency providing services to the obligee;
- Each employer that has directly received an income-withholding order relating to the obligor; and
- The person designated to receive payments in the income-withholding order or if no person is designated, to the obligee.
Source: L. 97: Entire part amended with relocations, p. 540, § 11, effective July 1. L. 2003: Entire section amended, p. 1256, § 30, effective July 1, 2004.
COMMENT
This section incorporates into the interstate context the local law regarding defenses an employee-obligor may raise to an income-withholding order. Generally, states have accepted the IV-D requirement that the only viable defense is a mistake of fact, 42 U.S.C. § 666(b)(4)(A). This apparently includes errors in the amount of current support owed, in the amount of accrued arrearage, or mistaken identity of the alleged obligor. Other grounds are excluded, such as inappropriate amount of support ordered, changed financial circumstances of the obligor, or lack of visitation. H.R. Rep. No. 98-527, 98th Cong., 1st Sess. 33 (1983). The latter claims must be pursued in a separate proceeding in the appropriate state, not in a UIFSA proceeding.
This procedure is based on the assumption that valid defenses to income withholding for child support are few and far between. Experience has shown that in relatively few cases does an employee-obligor have a complete defense, e.g., the child has died, another contingency ending the support has occurred, the order has been superseded, or there is a case of mistaken identity and the employee is not the obligor. An employee's complaint that "The child support is too high" must be ignored.
As noted frequently above, instances of multiple orders have become increasingly rare over the past two decades plus. Situations do arise, however, in which an employer has received multiple withholding notices regarding the obligor-employee and the same obligee. The notices may even allege conflicting amounts due, especially for payments on arrears. Additionally, many employees claim to have only learned of default orders when the withholding notice is delivered to the employer. This claim often is based on an assertion that the order being enforced through income withholding was entered without personal jurisdiction over the obligor-employee. A variety of similar fundamental defenses may be asserted, such as mistaken identity, full payment, another order controlling, etc.
Subsection (a) provides for a simple, efficient, and cost-effective method for an employee-alleged obligor to assert a defense. For example, if the existence of a support obligation is acknowledged but the details are at issue, the obligor may register the underlying "controlling" support order with a local tribunal and seek temporary protection pending resolution of the contest. This may be accomplished pro se, employment of private counsel, or by a request for services from the child support enforcement agency of the responding state. Some states provide administrative procedures for challenging the income withholding that may provide quicker resolution of a dispute than a judicially-based registration and hearing process. In the absence of expeditious action by the employee to assert a defense and contest the direct filing of a notice for withholding, however, the employer must begin income withholding in a timely fashion.
Another issue the employee-obligor may raise is that the withholding order received by the employer is not based on the controlling child-support order issued by the tribunal with continuing, exclusive jurisdiction, see Section 207, supra . Such a claim does not constitute a defense to the obligation of child support, but does put at issue the identity of the order to which the employer must respond.
The one order system initiated by UIFSA effectively has eliminated the multiple-order system of RURESA, which primarily involved multiple orders by different courts for the same child. At present most "duplicate income withholding orders" involve one state seeking state assigned arrears and another state also seeking arrears, and possibly ongoing support as well. Clearly the employer is in no position to make a decision on how to proceed to resolve such conflicting claims. When multiple orders involve the same employee-obligor and child, or multiple children (including those with other mothers), as a practical matter resort to a responding tribunal to resolve the resulting dispute almost certainly will be necessary.
14-5-507. Administrative enforcement of orders.
- A party or support enforcement agency seeking to enforce a support order or an income-withholding order, or both, issued in another state or a foreign support order may send the documents required for registering the order to a support enforcement agency of this state.
- Upon receipt of the documents, the support enforcement agency, without initially seeking to register the order, shall consider and, if appropriate, use any administrative procedure authorized by the law of this state to enforce a support order or an income-withholding order, or both. If the obligor does not contest administrative enforcement, the order need not be registered. If the obligor contests the validity or administrative enforcement of the order, the support enforcement agency shall register the order pursuant to this article.
Source: L. 97: Entire part amended with relocations, p. 540, § 11, effective July 1. L. 2003: (a) amended, p. 1257, § 31, effective July 1, 2004. L. 2015: (a) amended, (HB 15-1198), ch. 173, p. 554, § 30, effective July 1.
Editor's note: This section was formerly numbered as § 14-5-502.
COMMENT
Sections 501 through 506 are posited on the belief that U.S. employers ought not be burdened with enforcement of foreign income-withholding orders received directly from overseas. This view is inapplicable if a support enforcement agency is involved. The procedural safeguards built into the Title IV-D system of processing requests between Central Authorities provide reasonable assurance that the income withholding order to be enforced is genuine.
This section authorizes summary enforcement of an interstate or foreign child-support order through the administrative means available for intrastate orders if the agency deems it "appropriate" to do so. Under subsection (a), an interested party in another state or foreign country, which necessarily includes a private attorney or a support enforcement agency, may forward a support order or income-withholding order to a support enforcement agency of the responding state. The term "responding state" in this context does not necessarily contemplate resort to a tribunal as an initial step.
Subsection (b) directs the support enforcement agency in the responding state to consider and, if appropriate, to use that state's regular administrative procedures to process an out-of-state order. Thus, a local employer accustomed to dealing with the local agency need not change its procedure to comply with an out-of-state order. Similarly, the administrative agency is authorized to apply its ordinary rules equally to both intrastate and interstate orders. For example, if the administrative hearing procedure must be exhausted for an intrastate order before a contesting party may seek relief in a tribunal, the same rule applies to an interstate order received for administrative enforcement. This subsection also makes it clear that filing liens or submitting claims in legal actions do not require the initial registration of the order.
PART 6 REGISTRATION, ENFORCEMENT, AND MODIFICATION OF SUPPORT ORDER
INTRODUCTORY COMMENT
Sections 601 through 604 establish the basic procedure for the registration of a support order from another state or a foreign support order. Under RURESA when a tribunal of a responding state was requested to register and enforce an existing child-support order, the common practice was to ignore the request; rather, a separate proceeding would be initiated for the establishment of a new support order. This practice was specifically rejected by UIFSA; this practice under RURESA created the multiple support-order system that UIFSA was specifically designed to eliminate. Under Sections 205 through 207 the one-order system allows only one existing order to be enforced prospectively.
Sections 605 through 608 provide the procedure for the nonregistering party to contest registration of an order, either because the order is allegedly invalid, superseded, or no longer in effect, or because the enforcement remedy being sought is opposed by the nonregistering party. Other enforcement remedies may be available without resort to the UIFSA process under the law of the responding state. See Section 104.
The registration and enforcement provisions in Sections 601 through 608 are consistent with the "recognition and enforcement" provisions of the Convention. The terms of this article and Article 7 suffice to direct international support orders into the proper channels.
SUBPART A REGISTRATION FOR ENFORCEMENT OF SUPPORT ORDER
14-5-601. Registration of order for enforcement.
A support order or income-withholding order issued in another state or a foreign support order may be registered in this state for enforcement.
Source: L. 93: Entire article R&RE, p. 1596, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1257, § 32, effective July 1, 2004. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 555, § 31, effective July 1.
COMMENT
Registration of an order in a tribunal of the responding state is the first step to enforce a support order from another state or foreign country. If a prior support order has been validly issued by a tribunal with continuing, exclusive jurisdiction, see Section 205, such an order is to be prospectively enforced against the obligor in the absence of narrow, strictly defined fact situations in which an existing order may be modified. See Sections 609 through 614. Until and unless that order is modified, however, it remains an order of the issuing tribunal and is fully enforceable in the responding state.
Although registration that is not accompanied by a request for the affirmative relief of enforcement is not prohibited, the act does not contemplate registration as serving a purpose in itself. In that regard, registration is a process, and the failure to register does not deprive an otherwise appropriate forum of subject matter jurisdiction. Note that either or both a state support order or a state income-withholding order may be registered. However, although a foreign support order also may be registered, this section does not contemplate recognition of a foreign income-withholding order.
Related to Convention: art. 23. Procedure on an application for recognition and enforcement; art. 26. Procedure on an application for recognition.
ANNOTATION
A district court in a RURESA action may not enter a judgment for child support arrearages under the original decree in another state unless the petitioning party proceeds under the alternative registration of a foreign support order provisions of §§ 14-5-137 to 14-5-141. Henry v. Knight, 746 P.2d 1375 (Colo. App. 1987) (decided under former § 14-5-137 as it existed prior to the 1993 repeal and reenactment of this article).
14-5-602. Procedure to register order for enforcement.
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Except as otherwise provided in section 14-5-706, a support order or income-withholding order of another state or a foreign support order may be registered in this state by sending the following records to the appropriate tribunal in this state:
- A letter of transmittal to the tribunal requesting registration and enforcement;
- Two copies, including one certified copy, of the order to be registered, including any modification of the order;
- A sworn statement by the person requesting registration or a certified statement by the custodian of the records showing the amount of any arrearage;
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The name of the obligor and, if known:
- The obligor's address and social security number;
- The name and address of the obligor's employer and any other source of income of the obligor; and
- A description and the location of property of the obligor in this state not exempt from execution; and
- Except as otherwise provided in section 14-5-312, the name and address of the obligee and, if applicable, the person to whom support payments are to be remitted.
- On receipt of a request for registration, the registering tribunal shall cause the order to be filed as an order of a tribunal of another state or a foreign support order, together with one copy of the documents and information, regardless of their form.
- A petition or comparable pleading seeking a remedy that must be affirmatively sought under other law of this state may be filed at the same time as the request for registration or later. The pleading must specify the grounds for the remedy sought.
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If two or more orders are in effect, the person requesting registration shall:
(1) Furnish to the tribunal a copy of every support order asserted to be in effect in addition to the documents specified in this section;
(2) Specify the order alleged to be the controlling order, if any; and
(3) Specify the amount of consolidated arrears, if any.
- A request for a determination of which is the controlling order may be filed separately or with a request for registration and enforcement or for registration and modification. The person requesting registration shall give notice of the request to each party whose rights may be affected by the determination.
Source: L. 93: Entire article R&RE, p. 1596, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1257, § 33, effective July 1, 2004. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 555, § 31, effective July 1.
Editor's note: This section is similar to former § 14-5-140 as it existed prior to 1993.
COMMENT
Subsection (a) outlines the mechanics for registration of an interstate or foreign support order. Substantial compliance with the requirements is expected. The procedure for registration and enforcement set forth in this section is basically unchanged for a foreign support order; indeed, all of Sections 601 through 608 apply. The requirement that the order be "issued by a tribunal" has been subtly modified. Although the vast majority of enforceable support orders will be from a tribunal, in relatively rare instances an enforceable "foreign support order" from a Convention country will not have been issued by a tribunal, see e.g. , Section 710, infra . Note, however, that a request for registration of a foreign support order for which the Convention is in force is subject to Section 706. This is because the list of documents comprising the required record in subsection (a) differs in a measurable degree with Convention art. 11 and 25.
Millions of interstate domestic cases have been, and will continue to be, processed under the procedure specified in this section. It has been estimated that only approximately one-tenth of one percent (0.1%) of the Title IV-D caseload involve a foreign support order. Thus, the documentation specified by this section is the same for interstate and non-Convention foreign support orders. A support order from a Convention country is covered by the separate list of specifications in Section 706 to accommodate the differences between this act and the Convention. Because child-support enforcement agencies have successfully dealt with foreign support orders with increasing frequency during the UIFSA era, this may well prove to be a distinction without much difference.
Subsection (b) confirms that the support order being registered is not converted into an order of the responding state; rather, it continues to be an order of the tribunal of the issuing state or foreign country.
Subsection (c) warns that if a particular enforcement remedy must be specifically sought under local law, the same rules of procedure and substantive law apply to an interstate or international case. For example, if license suspension or revocation is sought as a remedy for alleged noncompliance with an order, the substantive and procedural rules of the responding state apply. Whether the range of application of the remedy in the responding state is wider or narrower than that available in the issuing state or foreign country is irrelevant. The responding tribunal will apply the familiar law of its state, and is neither expected nor authorized to consider the enforcement laws of the issuing state or foreign country. In short, the responding tribunal follows the identical path for enforcing the order of a tribunal of another state or foreign country as it would when enforcing an order of the responding state. The authorization of a later filing to comply with local law contemplates that interstate or international pleadings may be liberally amended to conform to local practice.
Subsections (d) and (e) amplify the procedures to be followed when two or more child-support orders exist and registration for enforcement is sought. In such instances, the requester is directed to furnish the tribunal with sufficient information and documentation so that the tribunal may make a determination of the controlling order for prospective support and of the amount of consolidated arrears and interest accrued under all valid orders. See Section 207.
Related to Convention: art. 11. Application contents; art. 20. Bases for recognition and enforcement; art. 21. Severability and partial recognition and enforcement; art. 22. Grounds for refusing recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement; art. 25. Documents.
14-5-603. Effect of registration for enforcement.
- A support order or income-withholding order issued in another state or a foreign support order is registered when the order is filed in the registering tribunal of this state.
- A registered support order issued in another state or a foreign country is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.
- Except as otherwise provided in this part 6, a tribunal of this state shall recognize and enforce, but may not modify, a registered support order if the issuing tribunal had jurisdiction.
Source: L. 93: Entire article R&RE, p. 1597, § 1, effective January 1, 1995. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 556, § 31, effective July 1.
Editor's note: This section is similar to former § 14-5-141 as it existed prior to 1993.
COMMENT
Initially the text of the registration procedure under UIFSA (1992) was nearly identical to that set forth in RURESA. But, the intent of UIFSA registration was always radically different. Under UIFSA, registration of a support order of State A continues to be an order of that state, which is to be enforced by a tribunal of State B. The ordinary rules of evidence and procedure of State B apply to hearings, except as local law may be supplemented or specifically superseded by other local law, i.e., UIFSA. The purpose of the registration procedure in sections 601 through 604 is that the order being registered remains a State A order until modified.
First, note that subsection (a) is phrased in the passive voice; "A support order . . . is registered when the order is filed in the registering tribunal . . . ." This drafting is deliberate. By indirection, in effect UIFSA provides that either the obligor, the obligee, or a support enforcement agency, may register a support order of another state or a foreign support order. In fact, even a stranger to the litigation, for example a grandparent or an employer of an alleged obligor, may register a support order. Presumptively, the order registered is the valid, controlling order. If not, the act depends on the respondent to contest the registration. See Sections 605 through 608.
Subsection (b) provides that a support order of another state or a foreign support order is to be enforced and satisfied in the same manner as if it had been issued by a tribunal of the registering state. Conceptually, the responding tribunal is enforcing the order of a tribunal of another state or a foreign support order, not its own order.
Subsection (c) mandates enforcement of the registered order, but forbids modification unless the terms of Sections 609 through 614 are met. Under UIFSA there will be only one order in existence at any one time. That order is enforceable in a responding state irrespective of whether the order may be modified. In most instances, a child-support order will be subject to the continuing, exclusive jurisdiction of the issuing tribunal. Sometimes the issuing tribunal will not be able to exercise its authority to modify the order because neither the child nor the parties reside in the issuing state. Nonetheless, the order may be registered and is fully enforceable in a responding state until the potential for modification actually occurs in accordance with the strict terms for such a proceeding. See Section 611. Thus, the registering tribunal always must bear in mind that the enforcement procedures taken, whether to enforce current support or to assist collecting current and future arrears and interest, are made on behalf of the issuing tribunal, and are not a modification of the controlling order.
Related to Convention: art. 11. Application contents; art. 20. Bases for recognition and enforcement; art. 21. Severability and partial recognition and enforcement; art. 22. Grounds for refusing recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement; art. 25. Documents.
ANNOTATION
Annotator's note: Since § 14-5-603 is similar to § 14-5-141 as it existed prior to the 1993 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.
Procedures and defenses available. When a complaining party registers a foreign support order in the responding state, the procedures and defenses available thereafter are those applicable to an action to enforce a foreign money judgment. In re McMahan, 660 P.2d 515 (Colo. App. 1983).
Applied in Malmgren v. Malmgren, 628 P.2d 164 (Colo. App. 1981).
14-5-604. Choice of law.
-
Except as otherwise provided in subsection (d) of this section, the law of the issuing state or foreign country governs:
- The nature, extent, amount, and duration of current payments under a registered support order;
- The computation and payment of arrearages and accrual of interest on the arrearages under the support order; and
- The existence and satisfaction of other obligations under the support order.
- In a proceeding for arrears under a registered support order, the statute of limitation of this state, or of the issuing state or foreign country, whichever is longer, applies.
- A responding tribunal of this state shall apply the procedures and remedies of this state to enforce current support and to collect arrears and interest due on a support order of another state or a foreign country registered in this state.
- After a tribunal of this state or another state determines which is the controlling order and issues an order consolidating arrears, if any, a tribunal of this state shall prospectively apply the law of the state or foreign country issuing the controlling order, including its law on interest on arrears, on current and future support, and on consolidated arrears.
Source: L. 93: Entire article R&RE, p. 1597, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1258, § 34, effective July 1, 2004. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 556, § 31, effective July 1.
Editor's note: This section is similar to former § 14-5-108 as it existed prior to 1993.
COMMENT
Subsection (a) is intended to clarify the wide range of subjects that are governed by the choice-of-law rules established in this section. The task is to identify those aspects of the case for which local law is inapplicable. A basic principle of UIFSA is that throughout the process the controlling order remains the order of the tribunal of the issuing state or foreign country until a valid modification. The responding tribunal only assists in the enforcement of that order. Absent a loss of continuing, exclusive jurisdiction by the issuing tribunal and a subsequent modification of the order, the order never becomes an order of a responding tribunal.
Subsection (a) first identifies those aspects of the initial child-support order that are governed by the term's original decision and the function of the issuing tribunal. First and foremost, ultimate responsibility for enforcement and final resolution of the obligor's compliance with all aspects of the support order belongs to the issuing tribunal. Thus, calculation of whether the obligor has fully complied with the payment of current support, arrears, and interest on arrears is also the duty of the issuing tribunal.
In UIFSA (1992) the decision was made by NCCUSL that the duration of child support should be fixed by the initial controlling child-support order. See Section 611(c). This policy decision was somewhat controversial at the time, especially given the general rule that "local law controls." But, case law regarding issues created by movement from one state with one duration to a state with another policy was hopelessly muddled, so a solution was sought. Then, as now, the policies of states on this subject varied greatly: today, a few states continue to set the once most-common age of 21 as the cut-off date; some continue the obligation past 21, dependent on enrollment in higher education (often with limited time specified); at the other end of the spectrum, some states end the obligation of child support at age 18; in others at 19; and, most popularly, at one or the other of either age 18 or 19, plus graduation from high school, whichever is later.
Under subsection (a), if the initial issuing tribunal sets the age for termination of child support at 18, a responding state must recognize and enforce that child-support order. If the responding state sets its child support to age 21, the responding tribunal may not apply that time duration to require additional support to that age. The converse is also true. If the controlling order of another state ends the support obligation at 21, the responding tribunal in a state with 18 as the maximum duration for child support must enforce the controlling order until age 21. The dissent on this policy decision in UIFSA has abated over time. Interestingly, the Convention establishes age 21 as the hallmark. At the same time, under Convention art. 2(2), a country may reserve the right to limit the application of the Convention with regard to child support to persons who have not reached the age of 18. The United States does not intend to make such a reservation.
Similarly, subsection (a) directs that the law of the issuing state or foreign country governs the answer to questions such as whether a payment made for the benefit of a child, such as a Social Security benefit for a child of a disabled obligor, should be credited against the obligor's child support obligation. In sum, on these subjects the consistent rule is that a controlling order from State A is enforced in State B (and State C as well).
Note that as soon as a general proposition is identified, an exception may well be presented. Subsection (b) contains a choice-of-law provision that often diverges from other local law. In situations in which the statutes of limitation differ from state to state, the statute with the longer term is to be applied. In interstate cases, arrearages often will have accumulated over a considerable period of time before enforcement is perfected. The rationale for this exception to the general rule of "local law applies" is that the obligor should not gain an undue benefit from his or her choice of residence if the forum state, as the obligor's state of residence, has a shorter statute of limitations for arrearages than does the controlling order state. On the other side of the coin, i.e., if the forum has a longer statute of limitations, the obligor will be treated in an identical manner as all other obligors in that state. This choice of limitations also applies to the time period after the accrual of the arrears in which to bring an enforcement action.
Subsection (c) mandates that local law controls with regard to enforcement procedures. For example, if the issuing state or foreign country has enacted a wide variety of license suspension or revocation statutes, while the responding state has a much narrower list of licenses subject to suspension or revocation, local law prevails.
Subsection (d) may initially appear only to express a truism the law of the issuing state is superior with regard to the terms of the support order. The last clause in the sentence, however, contains an important clarifying provision; that is, the law of the issuing state or foreign country is to be applied to the consolidated arrears, most particularly to the interest to be charged prospectively, even if the support orders of other states contributed a portion to those arrears. In sum, the local tribunal applies its own familiar procedures to enforce a support order, but it is clearly enforcing an order of a tribunal of another state and not an order of the forum.
Related to Convention: art. 2. Scope; art. 11. Application contents; art. 20. Bases for recognition and enforcement; art. 21. Severability and partial recognition and enforcement; art. 22. Grounds for refusing recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement; art. 25. Documents.
ANNOTATION
Annotator's note: Since § 14-5-604 is similar to § 14-5-108 as it existed prior to the 1993 repeal and reenactment of this article and to repealed § 43-2-7, C.R.S. 1963, relevant cases construing this provision have been included in this section.
Specific adoption of the choice of law provision under the Uniform Interstate Family Support Act by both Colorado and Texas overrides application of the general borrowing limitations statute set forth in § 13-80-110. In re Morris, 32 P.3d 625 (Colo. App. 2001).
The duty of support under this article is that imposed under the laws of the state where the obligor parent is or was present for the period during which support is sought. Ross v. Thomas, 753 P.2d 783 (Colo. App. 1987).
The validity of orders to furnish support and reimbursement are predicated upon a duty to support. Aguilar v. Holcomb, 155 Colo. 530 , 395 P.2d 998 (1964).
An order by the California court that the defendant owes a duty of support to the children residing in California was not enforceable in Colorado. The question as to whether defendant had a duty to support the children, whom it was alleged were his, a fact put in issue upon which there was no proof, must have been determined according to the laws of the state of Colorado. Aguilar v. Holcomb, 155 Colo. 530 , 395 P.2d 998 (1964).
The trial court could not find a duty of support on the defendant because it does not have any jurisdiction to determine paternity as a part of the proceedings under the uniform act. Aguilar v. Holcomb, 155 Colo. 530 , 395 P.2d 998 (1964).
Termination of support liability for Colorado resident. Where the obligor resides in Colorado, he is bound by Colorado law on the issue of when liability for support terminates. McDonald v. McDonald, 634 P.2d 1031 (Colo. App. 1981); Napolitano v. Napolitano, 732 P.2d 245 (Colo. App. 1987).
Application of changed circumstances standard proper. Court properly applied Colorado changed circumstances standard in § 14-10-122 to Colorado resident in action pursuant to Colorado support order rather than conducting new hearing for separate support order. People in Interest of Whittington v. Low, 761 P.2d 274 (Colo. App. 1988) (decided under law in effect prior to enactment of § 14-10-115 (17)).
No independent duty of support. This article does not create an independent duty of support but only a means of enforcing a duty arising out of either a foreign support order or the law of the state where the obligor resides. Com. of Pennsylvania v. Barta, 790 P.2d 895 (Colo. App. 1990).
Applied in County of Clearwater v. Petrash, 41 Colo. App. 143, 589 P.2d 1370 (1978), aff'd in part and rev'd on other grounds, 198 Colo. 231 , 598 P.2d 138 (1979); Gruber v. Wallner, 198 Colo. 235 , 598 P.2d 135 (1979).
SUBPART B CONTEST OF VALIDITY OR ENFORCEMENT
14-5-605. Notice of registration of order.
- When a support order or income-withholding order issued in another state or a foreign support order is registered, the registering tribunal of this state shall notify the nonregistering party. The notice must be accompanied by a copy of the registered order and the documents and relevant information accompanying the order.
-
A notice must inform the nonregistering party:
- That a registered order is enforceable as of the date of registration in the same manner as an order issued by a tribunal of this state;
- That a hearing to contest the validity or enforcement of the registered order must be requested within twenty days after notice unless the registered order is under section 14-5-707;
- That failure to contest the validity or enforcement of the registered order in a timely manner will result in confirmation of the order and enforcement of the order and the alleged arrearages; and
- Of the amount of any alleged arrearages.
-
If the registering party asserts that two or more orders are in effect, a notice must also:
(1) Identify the two or more orders and the order alleged by the registering party to be the controlling order and the consolidated arrears, if any;
(2) Notify the nonregistering party of the right to a determination of which is the controlling order;
(3) State that the procedures provided in subsection (b) of this section apply to the determination of which is the controlling order; and
(4) State that failure to contest the validity or enforcement of the order alleged to be the controlling order in a timely manner may result in confirmation that the order is the controlling order.
- Upon registration of an income-withholding order for enforcement, the support enforcement agency or the registering tribunal shall notify the obligor's employer pursuant to the income-withholding law of this state.
Source: L. 93: Entire article R&RE, p. 1597, § 1, effective January 1, 1995. L. 97: (a) and (b)(2) amended, p. 540, § 12, effective July 1. L. 2003: (b) and (c) amended and (d) added, p. 1259, § 35, effective July 1, 2004. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 557, § 31, effective July 1.
COMMENT
Subsection (a) requires the registering tribunal to provide notice to the nonregistering party of the effect of registration. After such notice is given, absent a successful contest by the nonregistering party, the order will be confirmed and future contest will be precluded. The notice contemplates far more than merely announcing an intent to initiate enforcement of an existing support order. The registered order or orders and other relevant documents and information must accompany the notice, including details about the alleged arrears.
Subsection (b) provides the nonregistering party with a wealth of information about the proceeding, including that: (1) the order is immediately enforceable; (2) a hearing must be requested within a relatively short time; (3) failure to contest "will result" in a confirmation of the order (roughly the equivalent of a default judgment); and (4) the amount of arrears, if any. Initially subsection (b) made the suggestion, via brackets, that [20] days be the time within which a request for a hearing to contest the support order be made. The rationale for this relatively short period was that the matter had already been litigated, and the obligor had already had the requisite "day in court," and was allegedly in default of a known order. Moreover, advocates of child-support enforcement stressed the necessity of quick resolution of an instance of nonsupport.
On the other hand, the Convention requires notice of hearing to be within a fixed time of 30 days, and further a fixed time of 60 days if the respondent resides in a foreign country. See Convention art. 23(6). This difference between UIFSA and the Convention is accommodated in Section 707. The time frame for notice of registration for an interstate support order and a foreign support order not subject to the Convention will be established by local law.
Subsection (c) is the correlative to Section 602 regarding the notice to be given to the nonregistering party if determination of a controlling order must be made because of the existence of two or more child-support orders. The petitioner requesting this affirmative relief is directed to identify the order alleged to be controlling under Section 207.
Subsection (d) states the obvious; i.e., the obligor's employer also must be notified if income is to be withheld. Often this will not be necessary if the employer has already been notified by the responding state's enforcement agency via the administrative process established in Section 507.
Related to Convention: art. 20. Bases for recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement.
14-5-606. Procedure to contest validity or enforcement of registered support order.
- A nonregistering party seeking to contest the validity or enforcement of a registered support order in this state shall request a hearing within the time required by section 14-5-605. The nonregistering party may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages pursuant to section 14-5-607.
- If the nonregistering party fails to contest the validity or enforcement of the registered support order in a timely manner, the order is confirmed by operation of law.
- If a nonregistering party requests a hearing to contest the validity or enforcement of the registered support order, the registering tribunal shall schedule the matter for hearing and give notice to the parties of the date, time, and place of the hearing.
Source: L. 93: Entire article R&RE, p. 1598, § 1, effective January 1, 1995. L. 97: (a) and (c) amended, p. 541, § 13, effective July 1. L. 2003: (a) amended, p. 1260, § 36, effective July 1, 2004. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 557, § 31, effective July 1.
COMMENT
Subsection (a) directs the "nonregistering party" to contest the registration of an interstate support order or a foreign support order not subject to the Convention within a short period of time or forfeit the opportunity to contest. As noted in Section 605, that time frame is extended for cases subject to the Convention.
Notice of registration is the first step for enforcement or modification of another state's child-support order. Once the nonregistering party is put on notice of the registration, if an error allegedly has been made, the second step is crucial. The nonregistering party is required to assert any existing defense to the alleged controlling order, or forfeit the opportunity to contest the allegations. Note that either the obligor or the obligee may have objections to the registered order, although in the vast majority of cases the obligor is the nonregistering party.
On the other hand, there is a possibility that in multiple-order situations either party may register the order most favorable to that party rather than register the likely controlling order, thus triggering a contest. Deliberately furnishing misinformation regarding the controlling order doubtless constitutes chicanery, which is contrary to Section 605(c). When a support enforcement agency requests registration, Section 307(c) requires reasonable efforts to ensure registration of the proper controlling order. Nonetheless, there may be an honest difference of opinion as to which order controls. The nonregistering obligor has a significant stake in assuring that both the order and the arrears are correctly stated.
Under UIFSA a contest of the fundamental provisions of the registered order is not permitted in the responding state. The nonregistering party must return to the issuing state or foreign country to prosecute such a contest (only as the law of that state or foreign country permits). This approach is akin to the prohibition found in Section 315 against asserting a nonparentage defense in a UIFSA proceeding. There is no attempt by UIFSA to preclude a collateral attack on the support order from being litigated in the appropriate forum.
Subsection (b) precludes an untimely contest of a registered support order.
Subsection (c) directs that a hearing be scheduled when the nonregistering party contests some aspect of the registration.
Related to Convention: art. 20. Bases for recognition and enforcement; art. 22. Grounds for refusing recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement; art. 26. Procedure on an application for recognition.
14-5-607. Contest of registration or enforcement.
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A party contesting the validity or enforcement of a registered support order or seeking to vacate the registration has the burden of proving one or more of the following defenses:
- The issuing tribunal lacked personal jurisdiction over the contesting party;
- The order was obtained by fraud;
- The order has been vacated, suspended, or modified by a later order;
- The issuing tribunal has stayed the order pending appeal;
- There is a defense under the law of this state to the remedy sought;
- Full or partial payment has been made;
- The statute of limitation under section 14-5-604 precludes enforcement of some or all of the alleged arrearages; or
- The alleged controlling order is not the controlling order.
- If a party presents evidence establishing a full or partial defense under subsection (a) of this section, a tribunal may stay enforcement of a registered support order, continue the proceeding to permit production of additional relevant evidence, and issue other appropriate orders. An uncontested portion of the registered support order may be enforced by all remedies available under the law of this state.
- If the contesting party does not establish a defense under subsection (a) of this section to the validity or enforcement of a registered support order, the registering tribunal shall issue an order confirming the order.
Source: L. 93: Entire article R&RE, p. 1598, § 1, effective January 1, 1995. L. 2003: (a)(6) and (a)(7) amended and (a)(8) added, p. 1260, § 37, effective July 1, 2004. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 558, § 31, effective July 1.
COMMENT
Subsection (a) places the burden on the nonregistering party to assert narrowly defined defenses to registration of a support order. The first of the listed defenses, lack of personal jurisdiction over the nonregistering party in the original proceeding, is undoubtedly the most widely discussed topic. It appears that at the appellate level, several of the other listed defenses are more commonly asserted. The decision in Kulko v. Superior Court, 436 U.S. 84 (1978) was somewhat controversial when delivered, and has remained so, at least in the international context. As a practical matter, however, the requirement that a support order be based on personal jurisdiction over both parties but primarily the obligor is a well-established fixture in the jurisprudence of the United States; relatively few appellate cases on this subject have been reported.
A nonregistering obligor may assert a wide variety of listed defenses, such as "payment" or "the obligation has terminated," in response to allegations of noncompliance with the registered order. There is no defense, however, to registration of a valid foreign support order. The nonregistering party also may contest the allegedly controlling order because its terms have been modified. Or, the defense may be based on the existence of a different controlling order. See Section 207. Presumably this defense must be substantiated by registration of the alleged controlling order to be effective.
While subsection (a)(6) is couched in terms that imply the defense to the amount of alleged arrears can only be that they are less, the converse is also available. For example, if the registering party is the obligor and asserts an amount of arrears that the obligee believes is too low, as the nonregistering party the obligee must contest to preclude confirmation of the alleged amount.
In the absence of a valid defense, if the obligor is found to be liable for current support, the registering tribunal must enter an order to enforce that obligation. Additional proof of arrearages must also result in enforcement under the Bradley Amendment, 42 U.S.C. Section 666(a)(10), which requires all states to treat child-support payments as final judgments as they come due (or lose federal funding). Therefore, federal law precludes arrearages from being subject to retroactive modification. Future modification of a child support order from another state is governed by Sections 609-614, and Sections 615-616 regulate modification of foreign child support orders.
Subsection (c) provides that failure to contest a registered order successfully requires the tribunal to confirm the validity of the registered order.
Related to Convention: art. 26. Procedure on an application for recognition.
ANNOTATION
Agreement between parents that was not approved by a court does not constitute a defense to registration under subsection (a)(3). People ex rel. State of Wyo. v. Stout, 969 P.2d 819 (Colo. App. 1998).
Subsection (b) conferred personal jurisdiction over another state's child support enforcement agency that continued to collect withholdings from plaintiff's wages under the Uniform Interstate Family Support Act, contrary to a previous Colorado court order vacating the other state's judgment upon which the wage assignment was based. Vogan v. County of San Diego, 193 P.3d 336 (Colo. App. 2008).
14-5-608. Confirmed order.
Confirmation of a registered support order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.
Source: L. 93: Entire article R&RE, p. 1599, § 1, effective January 1, 1995. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 558, § 31, effective July 1.
COMMENT
If, after notice, the nonregistering party fails to contest, the registered support order is confirmed by operation of law and no further action by a responding tribunal is necessary. Although the statute is not explicit on the subject, it seems likely in the absence of a contest both the registering and nonregistering party would be estopped from subsequently collaterally attacking the confirmed order, whether on the basis that "the wrong order was registered" or otherwise.
If contested, a registered support order must be confirmed by the responding tribunal if, after a hearing, the defenses authorized in Section 607 are rejected. Thus, either scenario precludes the nonregistering party from raising any issue that could have been asserted in a hearing. Confirmation of a support order, whether by action or as the result of inaction, validates both the terms of the order and the asserted arrearages.
Related to Convention: art. 22. Grounds for refusing recognition and enforcement; art. 26. Procedure on an application for recognition.
SUBPART C REGISTRATION AND MODIFICATION OF CHILD SUPPORT ORDER OF ANOTHER STATE
INTRODUCTORY COMMENT
Authority to modify a child-support order of another state depends on the interaction of these sections with the continuing, exclusive jurisdiction of the issuing tribunal. See Sections 205 through 206. This also might involve the determination of the controlling order in a situation involving multiple child-support orders. These concepts are not present in the international context. See Sections 615, 616, and 711. Thus, modification of a support order from a foreign country other than a Convention country is not governed by Sections 609-614, but is subject to Sections 615-616, infra .
Sections 609 through 614 apply only to modification of an interstate child-support order. Most of the act applies to "a support order," which includes both child-support and spousal support. Both categories are generally subject to interstate enforcement under UIFSA. But, as a practical matter, the actual process of that enforcement is quite different. Child support is enforced almost exclusively by governmentally sponsored Title IV-D agencies, which also may enforce spousal support if it is included in the same order. In some states, local funds are appropriated for enforcement of spousal support as well. Only occasionally will a private attorney be involved in a child-support case, but spousal support not issued in conjunction with a child-support order generally requires representation pro se or by private counsel. More importantly, a tribunal of a responding state may enforce spousal support, but it does not have authority to modify a spousal-support order of another state or foreign country unless the law of that jurisdiction does not assert continuing, exclusive jurisdiction over its order. See Section 211.
14-5-609. Procedure to register child support order of another state for modification.
A party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another state shall register that order in this state in the same manner provided in sections 14-5-601 through 14-5-608 if the order has not been registered. A petition for modification may be filed at the same time as a request for registration, or later. The pleading must specify the grounds for modification.
Source: L. 93: Entire article R&RE, p. 1599, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1260, § 38, effective July 1, 2004. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 559, § 31, effective July 1.
Editor's note: This section is similar to former § 14-5-110 as it existed prior to 1993.
COMMENT
Sections 609 through 614 deal with situations in which it is permissible for a registering state to modify the existing child-support order of another state. The first step for modification of another state's child-support order is registration in the responding tribunal under Sections 601 to 604. In some situations, this may also involve identification of the controlling order. A petitioner wishing to register a support order of another state for purposes of modification must conform to the general requirements for pleadings in Section 311, and follow the procedure for registration set forth in Section 602. If the tribunal has the requisite personal jurisdiction over the parties and may assume subject matter jurisdiction as provided in Sections 611 or 613, modification may be sought independently, in conjunction with registration and enforcement, or at a later date after the order has been registered and enforced if circumstances have changed.
ANNOTATION
Annotator's note: Since § 14-5-609 is similar to § 14-5-110 as it existed prior to the 1993 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.
Full faith and credit must be given to another state's final order for arrearages entered under RURESA, § 14-5-101 et seq. In re Sabala, 802 P.2d 1163 (Colo. App. 1990).
The doctrine of equitable estoppel may properly be applied to afford relief from accrued arrearages in child support if the party asserting the claim demonstrates reasonable reliance, to the party's detriment, upon the acts or representations of the other person, and lack of knowledge or convenient means of knowing the facts. In re Dennin and Lohf, 811 P.2d 449 (Colo. App. 1991).
14-5-610. Effect of registration for modification.
A tribunal of this state may enforce a child support order of another state registered for purposes of modification, in the same manner as if the order had been issued by a tribunal of this state, but the registered support order may be modified only if the requirements of section 14-5-611 or 14-5-613 have been met.
Source: L. 93: Entire article R&RE, p. 1599, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1260, § 39, effective July 1, 2004. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 559, § 31, effective July 1.
COMMENT
An order issued in another state registered for purposes of modification may be enforced in the same manner as an order registered for purposes of enforcement. But, the power of the forum tribunal to modify a child-support order of another tribunal is limited by the specific factual preconditions set forth in Sections 611 and 613.
14-5-611. Modification of child support order of another state.
-
If section 14-5-613 does not apply, upon petition a tribunal of this state may modify a child support order issued in another state which order is registered in this state if, after notice and hearing, the tribunal finds that:
-
The following requirements are met:
- Neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state;
- A petitioner who is a nonresident of this state seeks modification; and
- The respondent is subject to the personal jurisdiction of the tribunal of this state; or
- This state is the residence of the child or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state, and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction.
-
The following requirements are met:
- Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner.
- A tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state, including the duration of the obligation of support. If two or more tribunals have issued child support orders for the same obligor and same child, the order that controls and must be so recognized under section 14-5-207 establishes the aspects of the support order which are nonmodifiable.
- In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor's fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this state.
- On issuance of an order by a tribunal of this state modifying a child support order issued in another state, the tribunal of this state becomes the tribunal having continuing, exclusive jurisdiction.
-
Notwithstanding subsections (a) through (e) of this section and section 14-5-201 (b), a tribunal of this state retains jurisdiction to modify an order issued by a tribunal of this state if:
(1) One party resides in another state; and
(2) The other party resides outside the United States.
Source: L. 93: Entire article R&RE, p. 1599, § 1, effective January 1, 1995. L. 97: Entire section amended, p. 541, § 14, effective July 1. L. 2003: Entire section amended, p. 1260, § 40, effective July 1, 2004. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 559, § 31, effective July 1.
COMMENT
The Play-away Rule. As long as the issuing tribunal has continuing, exclusive jurisdiction over its child-support order, a responding tribunal is precluded from modifying the controlling order. See Sections 205 through 207. UIFSA (1992) made critical choices regarding modification of an existing child-support order. First, the "one-order" rule was to be paramount. Second, the issuing tribunal had continuing, exclusive jurisdiction to modify its order as long as a party or the child continued to reside in the issuing state. The original order remained in force as the controlling order until modified by another tribunal. Third, a separate procedure was created for modification of an existing child-support order when all parties and the child moved from the issuing state and acquired new residences. The key was that the movant seeking modification be "a nonresident of this state." The deciding factor, determined after extended debate, centered on curbing or eliminating the undesirable effect of "ambush or tag" jurisdiction, e.g., the likelihood that the parties would vie to strike first to obtain a home-town advantage. Although constitutional under Burnham v. Superior Court, 495 U.S. 604 (1990), such lawsuits would discourage continued contact between the child and the obligor, or between the parties for fear of a lawsuit in a distant forum. Thus, the goal was to avoid the situation in which modification would be available in a forum having personal jurisdiction over both parties based solely on the ground that service of process was made in the would-be forum state.
Under subsection (a)(1), before a responding tribunal may modify the existing controlling order, three specific criteria must be satisfied. First, the individual parties and the child must no longer reside in the issuing state. Second, the party seeking modification, usually the obligee, must register the order as a nonresident of the forum. That forum is almost always the state of residence of the other party, usually the obligor. A colloquial (but easily understood) description is that the nonresident movant for modification must "play an away game on the other party's home field." Third, the forum must have personal jurisdiction over the parties. By registering the support order, the movant submits to the personal jurisdiction of the forum through seeking affirmative relief. On rare occasion, personal jurisdiction over the respondent may be supplied by long-arm jurisdiction. See Section 201.
The underlying policies of this procedure contemplate that the issuing tribunal no longer has an interest in exercising its continuing, exclusive jurisdiction to modify its order, nor information readily available to it to do so. The play-away rule achieves rough justice between the parties in the majority of cases by preventing ambush in a local tribunal. Moreover, it takes into account the factual realities of the situation. In the overwhelming majority of cases the movant is the obligee who is receiving legal assistance in the issuing and responding states from Title IV-D support enforcement agencies. Further, evidence about the obligor's ability to pay child support and enforcement of the support order is best accomplished in the obligor's state of residence.
Fairness requires that an obligee seeking to modify the existing child-support order in the state of residence of the obligor will not be subject to a cross-motion to modify custody merely because the issuing tribunal has lost its continuing, exclusive jurisdiction over the support order. The same restriction applies to an obligor who moves to modify the support order in a state other than that of his or her residence.
There are exceptions to the play-away rule. Under subsection (a)(2), the parties may agree that a particular forum may serve to modify the order, even if the issuing tribunal has continuing, exclusive jurisdiction. Subsection (a)(2) also applies if the individual parties agree to submit the modification issue to a tribunal in the petitioner's state of residence. Implicit in this shift of jurisdiction is that the agreed tribunal has subject matter jurisdiction and personal jurisdiction over at least one of the parties or the child, and that the other party submits to the personal jurisdiction of that forum. UIFSA does not contemplate that parties may agree to confer jurisdiction on a tribunal without a nexus to the parties or the child.
Proof that neither individual party nor the child continues to reside in the issuing state is made directly in the responding tribunal. No purpose is served by requiring the movant to return to the original issuing tribunal for a hearing to elicit confirmation of fact that none of the relevant persons still lives in the issuing state. Thus, the issuing tribunal is not called upon to transfer or surrender its continuing, exclusive jurisdiction or otherwise participate in the process, nor does it have discretion to refuse to yield jurisdiction.
There is a distinction between the processes involved under subsection (a). Once the requirements of subsection (a)(1) are met for assumption of jurisdiction, the responding tribunal acts on the modification and then notifies the issuing tribunal that the prior controlling order has been replaced by a new controlling order. In contrast, for another tribunal to assume modification jurisdiction by agreement under subsection (a)(2), the individual parties first must agree in a record to modification in the responding tribunal and file the record with the issuing tribunal. Thereafter they may proceed in the responding tribunal.
A similar exception is found in Section 205(a)(2), which enables the parties to agree in a record of the original issuing tribunal that it may retain jurisdiction over the order even if all parties have left that state. Note that such an agreement can be incorporated in the initial order of the issuing tribunal.
Section 613 also is an exception to subsection (a)(1): it supplants the play-away rule if all parties have left the original issuing state and now reside in the same state, whether by chance or design.
Subsection (b) provides that when a responding tribunal assumes modification jurisdiction because the issuing tribunal has lost continuing, exclusive jurisdiction, the proceedings will generally follow local law with regard to modification of a child-support order, except as provided in subsections (c) and (d).
Duration of the Child Support Obligation. Prior to 1993 American case law was thoroughly in chaos over modification of the duration of a child-support obligation when an obligor or obligee moved from one state to another state and the states had different ages for the duration of child support. The existing duration usually was ignored by the issuance of a new order applying local law, which elicited a variety of appellate court opinions. UIFSA (1992) determined that a uniform rule should be proposed, to wit, duration of the child-support obligation would be fixed by the initial controlling order. Subsection (c) provides the original time frame for support is not modifiable unless the law of the issuing state provides for its modification. After UIFSA (1996) was universally enacted, some tribunals sought to subvert this policy by holding that completion of the obligation to support a child through age 18 established by a now-completed controlling order did not preclude the imposition of a new obligation to support the child through age 21, or beyond.
Subsection (d) prohibits imposition of multiple, albeit successive, support obligations. The initial controlling order may be modified and replaced by a new controlling order in accordance with the terms of Sections 609 through 614. But, the duration of the child support obligation remains constant, even though other aspects of the original order may be changed.
Sometimes a domestic-violence protective order includes a provision for child support that will be in force for a specific time. The duration of the protective order often is less than the general law of the state for duration of the child-support obligation. Under these facts the general law of the issuing state regarding duration controls a subsequent child-support order.
Subsection (e) provides that on modification the new child-support order becomes the controlling order to be recognized by all UIFSA states. Good practice mandates that the responding tribunal should explicitly state in its order that it is assuming responsibility for the controlling child-support order. Neither the parties nor other tribunals should be required to speculate about the effect of the action.
International Effect. Prohibiting modification based on the play-away principle in the international context is problematic. The issue arises because the United States is wedded to personal jurisdiction over the individual parties at a state level, rather than the child-based, national jurisdiction found virtually everywhere else. For example, a foreign country typically regards a support order to be of the country, not an order from a political subdivision, e.g., an order from Germany. In some important instances, however, a foreign support order is indeed made in a political subdivision, e.g., a support order from a Canadian province. Although consideration was given to labeling a support order issued in a state to be an order of the United States, conforming modification of child support to the general principles of state law through UIFSA is the only practical choice.
Subsection (f) creates a necessary exception to the play-away concept when the parties and the child no longer reside in the issuing state and one party resides outside the United States. The play-away principle makes sense when the tribunals involved have identical laws regarding continuing, exclusive jurisdiction to modify a child-support order. See Sections 205 through 207. If one party resides in a foreign country, a pure play-away rule would deny modification in a forum subject to UIFSA rules to the party or child who has moved from the issuing state, but continues to reside in the United States. This result does not occur under Convention art.18, which places restrictions on modification of a support order in another Convention country if the obligee remains in the issuing Convention country. That article does not mention an effect when only the obligor remains in the issuing country, perhaps because the Convention makes clear that under a child-based system modification jurisdiction will follow the obligee and the child.
Subsection (f) identifies the tribunal that issued the controlling order as the logical choice for an available forum in which UIFSA will apply. This exception to the play-away rule provides assured personal jurisdiction over the parties, which in turn enables the issuing tribunal to retain continuing jurisdiction to modify its order. Of course, the party residing outside the United States has the option to pursue a modification in the state where the other party or child currently reside.
In sum, under this section personal service on either the custodial or noncustodial party found within the state borders, by itself, does not yield jurisdiction to modify. A party seeking to exercise rights of visitation, delivering or picking-up the child for such visitation, or engaging in unrelated business activity in the state, will not be involuntarily subjected to protracted litigation in an inconvenient forum. The play-away rule avoids the possible chilling effect on the exercise of parental contact with the child that the possibility of such litigation might have. The vast majority of disputes about whether a tribunal has jurisdiction will be eliminated. Moreover, submission by the petitioner to the state of residence of the respondent obviates this issue. Finally, because there is an existing order, the primary focus will shift to enforcement, thereby curtailing unnecessary modification efforts.
UIFSA Relationship to UCCJEA. Jurisdiction for modification of child support under subsections (a)(1) and (a)(2) is distinct from modification of custody under the federal Parental Kidnapping Prevention Act (PKPA), 42 U.S.C. § 1738A, and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) §§ 201 202. These acts provide that the court of exclusive, continuing jurisdiction may "decline jurisdiction." Declining jurisdiction, thereby creating a potential vacuum, is not authorized under UIFSA. Once a controlling child-support order is established under UIFSA, at all times thereafter there is an existing order in effect to be enforced. Even if the issuing tribunal no longer has continuing, exclusive jurisdiction, its order remains fully enforceable until a tribunal with modification jurisdiction issues a new order in conformance with this article.
UIFSA and UCCJEA seek a world in which there is but one order at a time for child support and custody and visitation. Both have similar restrictions on the ability of a tribunal to modify the existing order. The major difference between the two acts is that the basic jurisdictional nexus of each is founded on different considerations. UIFSA has its focus on the personal jurisdiction necessary to bind the obligor to payment of a child-support order. UCCJEA places its focus on the factual circumstances of the child, primarily the "home state" of the child; personal jurisdiction to bind a party to the custody decree is not required. An example of the disparate consequences of this difference is the fact that a return to the decree state does not reestablish continuing, exclusive jurisdiction under the UCCJEA. See UCCJEA § 202. Under similar facts UIFSA grants the issuing tribunal continuing, exclusive jurisdiction to modify its child-support order if, at the time the proceeding is filed, the issuing tribunal "is the residence" of one of the individual parties or the child. See Section 205.
Related to Convention: art. 18. Limit on proceedings.
ANNOTATION
Court is authorized to modify a child support order that was issued in another state and is registered in this state if: (1) The child, individual obligee, and the obligor do not reside in the issuing state; (2) the petitioning party seeking modification is a nonresident of this state; and (3) the respondent is subject to the personal jurisdiction of the tribunal of this state. In re Zinke, 967 P.2d 210 (Colo. App. 1998).
14-5-612. Recognition of order modified in another state.
If a child support order issued by a tribunal of this state is modified by a tribunal of another state which assumed jurisdiction pursuant to the "Uniform Interstate Family Support Act", a tribunal of this state:
- May enforce its order that was modified only as to arrears and interest accruing before the modification;
- May provide appropriate relief for violations of its order which occurred before the effective date of the modification; and
- Shall recognize the modifying order of the other state, upon registration, for the purpose of enforcement.
- (Deleted by amendment, L. 2003, p. 1261 , 41, effective July 1, 2004.)
Source: L. 93: Entire article R&RE, p. 1600, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1261, § 41, effective July 1, 2004. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 560, § 31, effective July 1.
Editor's note: This section is similar to former § 14-5-110 as it existed prior to 1993.
COMMENT
A key aspect of UIFSA is the deference to the controlling child-support order of a sister state demanded from a tribunal of the forum state. This applies not just to the original order, but also to a modified child-support order issued by a second state under the standards established by Sections 611and 613. For the act to function properly, the original issuing tribunal must recognize and accept the modified order as controlling, and must regard its prior order as prospectively inoperative. Because the UIFSA system is based on an interlocking series of state laws, it is fundamental that a modifying tribunal of one state lacks the authority to direct the original issuing tribunal to release its continuing, exclusive jurisdiction. That result is accomplished through the enactment of UIFSA by all states, which empowers a modifying tribunal to assume continuing, exclusive jurisdiction from the original issuing tribunal and requires an issuing tribunal to recognize such an assumption of jurisdiction. This explains why the U.S. Congress took the extraordinary measure in PRWORA of mandating universal passage of UIFSA (1996), as amended. See Prefatory Note.
The original issuing tribunal retains authority post-modification to take remedial enforcement action directly connected to its now-modified order.
ANNOTATION
Annotator's note: Since § 14-5-612 is similar to § 14-5-110 as it existed prior to the 1993 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.
Full faith and credit must be given to another state's final order for arrearages entered under RURESA, § 14-5-101 et seq. In re Sabala, 802 P.2d 1163 (Colo. App. 1990).
The doctrine of equitable estoppel may properly be applied to afford relief from accrued arrearages in child support if the party asserting the claim demonstrates reasonable reliance, to the party's detriment, upon the acts or representations of the other person, and lack of knowledge or convenient means of knowing the facts. In re Dennin and Lohf, 811 P.2d 449 (Colo. App. 1991).
14-5-613. Jurisdiction to modify child support order of another state when individual parties reside in this state.
- If all of the parties who are individuals reside in this state and the child does not reside in the issuing state, a tribunal of this state has jurisdiction to enforce and to modify the issuing state's child support order in a proceeding to register that order.
- A tribunal of this state exercising jurisdiction under this section shall apply the provisions of parts 1 and 2 of this article, this part 6, and the procedural and substantive law of this state to the proceeding for enforcement or modification. Parts 3, 4, 5, 7, and 8 of this article do not apply.
Source: L. 97: Entire section added, p. 542, § 15, effective July 1. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 560, § 31, effective July 1.
COMMENT
It is not unusual for the parties and the child subject to a child-support order to no longer reside in the issuing state, and for the individual parties to have moved to the same new state. The result is that the child-support order remains enforceable, but the issuing tribunal no longer has continuing, exclusive jurisdiction to modify its order. A tribunal of the state of mutual residence of the individual parties has jurisdiction to modify the child-support order and assume continuing, exclusive jurisdiction. Although the individual parties must reside in the forum state, there is no requirement that the child must also reside in the forum state (although the child must have moved from the issuing state).
Finally, because modification of the child-support order when all parties reside in the forum is essentially an intrastate matter, subsection (b) withdraws authority to apply most of the substantive and procedural provisions of UIFSA, i.e., those found in the act other than in Articles 1, 2, and 6. Note the duration of the support obligation is a nonmodifiable aspect of the original controlling order, see Section 611(c)-(d).
14-5-614. Notice to issuing tribunal of modification.
Within thirty days after issuance of a modified child support order, the party obtaining the modification shall file a certified copy of the order with the issuing tribunal that had continuing, exclusive jurisdiction over the earlier order, and in each tribunal in which the party knows the earlier order has been registered. A party who obtains the order and fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file does not affect the validity or enforceability of the modified order of the new tribunal having continuing, exclusive jurisdiction.
Source: L. 97: Entire section added, p. 542, § 15, effective July 1. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 560, § 31, effective July 1.
COMMENT
For the act to function properly, the prevailing party in a proceeding that modifies a controlling order must inform the original issuing tribunal about its loss of continuing, exclusive jurisdiction over its child-support order. Thereafter, the original tribunal may not modify, or review and adjust, the amount of child support. Notice to the issuing tribunal and other affected tribunals that the continuing, exclusive jurisdiction of the former controlling order has been modified is crucial to avoid the confusion and chaos of the multiple-order system UIFSA replaced.
The new issuing tribunal has authority to impose sanctions on a party who fails to comply with the requirement to give notice of a modification to all interested tribunals. Note, however, that failure to notify a displaced tribunal of the modification of its order does not affect the validity of the modified order.
SUBPART D REGISTRATION AND MODIFICATION OF FOREIGN CHILD SUPPORT ORDER
14-5-615. Jurisdiction to modify child support order of foreign country.
- Except as otherwise provided in section 14-5-711, if a foreign country lacks or refuses to exercise jurisdiction to modify its child support order pursuant to its laws, a tribunal of this state may assume jurisdiction to modify the child support order and bind all individuals subject to the personal jurisdiction of the tribunal whether the consent to modification of a child support order otherwise required of the individual pursuant to section 14-5-611 has been given or whether the individual seeking modification is a resident of this state or of the foreign country.
- An order issued by a tribunal of this state modifying a foreign child support order pursuant to this section is the controlling order.
Source: L. 2003: Entire section added, p. 1262, § 42, effective July 1, 2004. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 561, § 31, effective July 1.
COMMENT
Subsection (a) provides that a state tribunal may modify a foreign child-support order, other than a Convention order, when the foreign issuing tribunal lacks or refuses to exercise jurisdiction to modify its order. The standard example cited for the necessity of this special rule involved the conundrum posed when an obligor has moved to the responding state from the issuing country and the law of that country requires both parties to be physically present at a hearing before the tribunal in order to sustain a modification of child support. In that circumstance, the foreign issuing tribunal is unable to exercise jurisdiction to modify under its law. Ordinarily, under Section 611 the responding state tribunal is not authorized to issue a new order, in effect modifying the foreign support order, because the child or the obligee continues to reside in the issuing country. To remedy the perceived inequity in such a fact situation, this section provides an exception to the rule of Section 611. If both parties are subject to the personal jurisdiction of a state by the obligee's submission and the obligor's residence, or other grounds under Section 201, the responding state tribunal may modify the foreign child-support order. Modification of a Convention order is governed by Section 711.
The ability of a state tribunal to modify when the foreign country refuses to exercise its jurisdiction should be invoked with circumspection, as there may be a cogent reason for such refusal. Note, Section 317 empowers tribunals to communicate regarding this issue, rather than rely upon representations of one or more of the parties.
Subsection (b) states that if a new order is issued under subsection (a), it becomes the UIFSA controlling order insofar as other states are concerned. Obviously this act cannot dictate the same result to the issuing foreign tribunal, although it seems highly likely that either through child-based jurisdiction or an action filed by the obligee recognition by the foreign tribunal will occur.
Related to Convention: art. 18. Limit on proceedings.
14-5-616. Procedure to register child support order of foreign country for modification.
A party or support enforcement agency seeking to modify, or to modify and enforce, a foreign child support order not under the Convention may register that order in this state under sections 14-5-601 through 14-5-608 if the order has not been registered. A petition for modification may be filed at the same time as a request for registration, or at another time. The petition must specify the grounds for modification.
Source: L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 561, § 31, effective July 1.
COMMENT
The procedure for registration and enforcement set forth in Sections 601 through 608 is applicable to a child-support order from a non-Convention country. This section provides coverage for modification in that situation. Presumptively, the general law of the state regarding modification of a child-support order will apply because, by their terms, Sections 609 through 614 apply only to modification of a child-support order by a state tribunal. The rationale is that modification is available because the foreign order is not founded on the UIFSA principles of continuing, exclusive jurisdiction and a controlling order. See Sections 205 through 207.
PART 7 SUPPORT PROCEEDING UNDER CONVENTION
Editor's note: This article was repealed and reenacted in 1993, and this part 7 was subsequently repealed and reenacted in 2015 resulting in the addition, relocation, or elimination of sections as well as subject matter. For amendments to this part 7 prior to 2015, consult the 2014 Colorado Revised Statutes and the Colorado statutory research explanatory note beginning on page vii in the front of this volume.
INTRODUCTORY COMMENT
This article contains provisions adapted from the Convention that could not be readily integrated into the existing body of Articles 1 through 6. For the most part, extending the coverage of UIFSA (2008) to foreign countries was a satisfactory solution to merge the appropriate Convention terms into this act. In understanding this process, it must be clearly stated that the terms of the Convention are not substantive law.
The Convention is a multilateral treaty which binds the United States and the other Convention countries to assure compliance. As such, it will be the law of the land; but the treaty is not self-executing. See , Medellin v. Texas, 552 U.S. 491, 128 S. Ct. 1346, 170 L. Ed. 2d 190 (2008). Thus, the ultimate enforcement of the treaty in the United States is dependent on the key implementing federal law and the enactment of both federal and state legislation which provide the mechanism for enforcing the requirements of the Convention. This act is predicated on the principle that the enactment of UIFSA (2008) in all States and federal jurisdictions will effectively implement the Convention through state law by amending Articles 1 through 6, plus the addition of this article. The treaty, in essence, establishes the framework for a system of international cooperation by emulating the interstate effect of UIFSA for international cases, especially those affected by the Convention.
In relatively few instances, the provisions of the Convention are sufficiently specific that a choice was made between amending UIFSA accordingly, with a disproportionate effect on all support orders enforced under state law, or accommodating potential conflicts by creating a separate article to apply only to Convention support orders. The choice was to draft this article as state law to minimize disruption to interstate support orders, which constitute the vast majority of orders processed under UIFSA. Note that this act is the substantive and procedural state law for: (1) responding to an application for establishment, recognition and enforcement, or modification of a Convention support order; and, (2) initiating an application to a Convention country for similar action.
The four Hague maintenance conventions that preceded the 2007 Convention, and the three prior versions of UIFSA, have common goals. The distinctions between the jurisdictional rules in the common-law tradition in the United States, and the civil law systems in most of the countries that were parties to the earlier maintenance conventions, were obstacles to participation of the United States in any of the multilateral maintenance treaties. As the world has grown smaller and globalization has become the order of the day, reconciling the differences has become more and more important. Understanding the necessity for accommodation has made the task easier. This is not to say easy, as evidenced by the fact that the formal negotiations leading to the final text of the Convention spanned from May, 2003, to November, 2007.
The United States signed the Convention on November 23, 2007 and the Senate gave its advice and consent to ratification in 2010. Enabling federal legislation was enacted on September 29, 2014 which requires all states to enact UIFSA (2008) by the end of 2015. At that point the United States will deposit its instrument of ratification and the Convention will enter into force in the United States.
UIFSA (2008) and the 2007 Convention have far more in common than did former uniform acts and maintenance conventions, and, in fact, many provisions of the Convention are modeled on UIFSA principles. The negotiations demonstrated that it is possible to draft an international convention, which incorporates core UIFSA principles into a system for the establishment and enforcement of child support and spousal-support orders across international borders, and creates an efficient, economical, and expeditious procedure to accomplish these goals. Matters in common, however, go far beyond identical goals. The negotiations provided an opportunity for an extended interchange of ideas about how to adapt legal mechanisms to facilitate child support enforcement between otherwise disparate legal systems.
International cross-border enforcement has been far more important in Western Europe, and more recently, throughout the countries of the European Union than has been the case in the United States. On the other hand, experience with establishment and enforcement of interstate child-support orders in the United States has been building since 1950, and accelerated rapidly with enactment of Title IV-D of the Social Security Act in 1975. Clearly, the issues are far easier to deal with nationally because of the common language, currency, and legal system, and, since 1996, with the Title IV-D requirement that all states enact the same version of UIFSA. In fact, since the advent of UIFSA and Title IV-D, millions of interstate cases have been processed through the child support enforcement system and thousands of support orders from other countries have also been registered and enforced in the United States because UIFSA treated such orders as if they had been entered by one of the states. In the future, in Convention countries, this country's orders will be entitled to similar treatment. The entry into force of the Convention is designed to further improve the process and will most certainly lead in a few years to a substantial increase in international cases, both incoming and outgoing.
To create UIFSA (2008), it was necessary to integrate the texts of UIFSA (2001) and the Convention. This did not present a significant drafting challenge for the most part. By far the most common amendment in Articles 1 through 6 is to substitute "state or foreign country" for the term "state." These simple amendments expanded a majority of this act to cover foreign support orders. In this article statutory directions are given to "a tribunal of this state," and also to a "governmental entity, individual petitioner, support enforcement agency, or a party."
14-5-701. Definitions.
In this part 7:
- "Application" means a request under the Convention by an obligee or obligor, or on behalf of a child, made through a central authority for assistance from another central authority.
- "Central authority" means the entity designated by the United States or a foreign country described in section 14-5-102 (3.3)(D) to perform the functions specified in the Convention.
- "Convention support order" means a support order of a tribunal of a foreign country described in section 14-5-102 (3.3)(D).
- "Direct request" means a petition filed by an individual in a tribunal of this state in a proceeding involving an obligee, obligor, or child residing outside the United States.
- "Foreign central authority" means the entity designated by a foreign country described in section 14-5-102 (3.3)(D) to perform the functions specified in the Convention.
-
"Foreign support agreement":
-
Means an agreement for support in a record that:
- Is enforceable as a support order in the country of origin;
-
Has been:
- Formally drawn up or registered as an authentic instrument by a foreign tribunal; or
- Authenticated by, or concluded, registered, or filed with a foreign tribunal; and
-
May be reviewed and modified by a foreign tribunal; and
(B) Includes a maintenance arrangement or authentic instrument under the Convention.
-
Means an agreement for support in a record that:
- "United States central authority" means the secretary of the United States department of health and human services.
Source: L. 2015: Entire part R&RE, (HB 15-1198), ch. 173, p. 561, § 32, effective July 1.
COMMENT
A readily apparent difference between UIFSA (2008) and the Convention is the perceived need for definitions in the former, and the very limited number of definitions in the latter. This act contains twenty-nine definitions in Section 102, and an additional seven for this article. In contrast, the Convention contains only seven official definitions. Some of these are synonyms for definitions in UIFSA, i.e., "creditor and debtor" for "obligor and obligee," and "agreement in writing" for "record."
Subsection (1), "application" refers to the process for an individual obligor or obligee to request assistance from a central authority under the Convention.
Subsections (2) and (5) identify the governmental entities, i.e., central authority, in each contracting country or political subdivisions thereof, that will function as the operating agencies to facilitate contacts between Convention countries. The Convention is a treaty between the countries in which it is in force thus creating mutual obligations. The duties assigned in the Convention to the central authority of each country will be performed according to the choice of each country. It is crucial to recognize that in the United States it will be the Title IV-D agency of each state that will be designated by the U.S. central authority to perform most of the functions specified in the Convention. It appears likely that in many foreign countries the central authority will serve in the role of a clearinghouse, rather than as the operative enforcement entity, while some countries may assign all central authority functions to one agency.
Subsection (3), "Convention support order" narrows the term "foreign support order," as employed in Articles 1 through 6. The provisions in those articles also apply to Convention support orders, but when this act is not congruent with the Convention, support orders under the Convention are subject to this article. This article has no application to a support order from a non-Convention foreign country, as defined in Section 102(5)(A) and (B) or a support order entitled to comity, Section 102(5)(C), except to the extent that a Convention country may request enforcement of a non-Convention support order that has been recognized in the United States under some other procedure, see Section 704.
Subsection (4) integrates the "direct request" authorized by the Convention with the provisions for filing a petition in Articles 1 through 6.
The definition in the Convention for "maintenance arrangement" has been rephrased in Subsection (6), and must be read together with Section 710 to understand the process authorized in the Convention.
Convention source: art. 3. Definitions; art. 30. Maintenance arrangements.
Related to Convention: art. 4. Designation of Central Authorities; art. 37. Direct requests to competent authorities.
14-5-702. Applicability.
This part 7 applies only to a support proceeding under the Convention. In such a proceeding, if a provision of this part 7 is inconsistent with parts 1 through 6 of this article, this part 7 controls.
Source: L. 2015: Entire part R&RE, (HB 15-1198), ch. 173, p. 562, § 32, effective July 1.
COMMENT
The first sentence definitively states that this article applies only to a proceeding involving a Convention country, as defined in Section 102(5)(D). This article does not generally apply to a support order from a non-Convention foreign country as defined in Section 102(5)(A) and (B) or to a support order entitled to comity. The second sentence resolves a situation in which there is a conflict between a section in this article and a provision in Articles 1 through 6, in which case this article controls.
Related to Convention: art. 1. Object; art. 2. Scope; art. 4. Designation of Central Authorities.
14-5-703. Relationship of state department of human services to United States central authority.
The state department of human services of this state is recognized as the agency designated by the United States central authority to perform specific functions under the Convention.
Source: L. 2015: Entire part R&RE, (HB 15-1198), ch. 173, p. 562, § 32, effective July 1.
COMMENT
The Secretary of Health and Human Services has designated the state Title IV-D child support agencies as the governmental entities that will carry out many of the central authority's functions under the Convention. Each state determines which public office or administrative agency will perform the Title IV-D services for child support enforcement. Because the federal government provides a significant subsidy for this effort, the actions of the agency must comply with federal statutes and regulations and the state legislature must enact certain mandatory laws. The relationship is symbiotic in that states choose to participate in the Title IV-D program, and do so by following their own state procedures and legislative enactments that recognize and authorize the state officer or agency to function under these conditions.
Related to Convention: ch. II. Administrative co-operation, arts. 4-8; ch. III. Applications through central authorities, arts. 9-17.
14-5-704. Initiation by state department of human services of support proceeding under Convention.
-
In a support proceeding under this part 7, the state department of human services of this state shall:
- Transmit and receive applications; and
- Initiate or facilitate the institution of a proceeding regarding an application in a tribunal of this state.
- Establishment of a support order if there is no existing order, including, if necessary, determination of parentage of a child;
- Establishment of a support order if recognition of a foreign support order is refused under section 14-5-708 (b)(2), (4), or (9);
- Modification of a support order of a tribunal of this state; and
- Modification of a support order of a tribunal of another state or a foreign country.
-
The following support proceedings are available to an obligee under the Convention:
(1) Recognition or recognition and enforcement of a foreign support order;
(2) Enforcement of a support order issued or recognized in this state;
-
The following support proceedings are available under the Convention to an obligor against which there is an existing support order:
(1) Recognition of an order suspending or limiting enforcement of an existing support order of a tribunal of this state;
(2) Modification of a support order of a tribunal of this state; and
(3) Modification of a support order of a tribunal of another state or a foreign country.
- A tribunal of this state may not require security, bond, or deposit, however described, to guarantee the payment of costs and expenses in proceedings under the Convention.
Source: L. 2015: Entire part R&RE, (HB 15-1198), ch. 173, p. 562, § 32, effective July 1.
COMMENT
This section is designed to enable lawyers and non-lawyers to better understand proceedings under the Convention, which itself is written in terminology unfamiliar to legal proceedings in the United States.
Subsection (a) lists the rights and duties of a support enforcement agency.
Subsection (b) lists what rights and duties are available to an obligee, whether the proceeding is inbound from a Convention country or outbound to a Convention country.
In contrast to the general rule in UIFSA, which attempts to maintain something of parity between the obligor and obligee, subsection (c) limits the rights and duties available to an obligor under the Convention. This reflects the equal treatment ideal espoused by UIFSA in Articles 1 through 6, and the pro-obligee philosophy of the Convention. In actual practice, the results may not be that different. Recall that until replaced by UIFSA, an informal subtitle given to URESA by its leading proponents was "The Runaway Pappy Act."
Subsection (d) tracks Convention art. 14 (5).
Convention source: art. 6. Specific functions of Central Authorities; art. 10. Available applications; art. 14. Effective access to procedures.
Related to Convention: ch. II. Administrative co-operation, arts. 4-7; ch. III. Applications through central authorities, arts. 9-17.
14-5-705. Direct request.
- A petitioner may file a direct request seeking establishment or modification of a support order or determination of parentage of a child. In the proceeding, the law of this state applies.
- A petitioner may file a direct request seeking recognition and enforcement of a support order or support agreement. In the proceeding, sections 14-5-706 through 14-5-713 apply.
-
In a direct request for recognition and enforcement of a Convention support order or foreign support agreement:
- A security, bond, or deposit is not required to guarantee the payment of costs and expenses; and
- An obligee or obligor that in the issuing country has benefitted from free legal assistance is entitled to benefit, at least to the same extent, from any free legal assistance provided for by the law of this state under the same circumstances.
- A petitioner filing a direct request is not entitled to assistance from the state child support services agency in the state department of human services.
- This part 7 does not prevent the application of laws of this state that provide simplified, more expeditious rules regarding a direct request for recognition and enforcement of a foreign support order or foreign support agreement.
Source: L. 2015: Entire part R&RE, (HB 15-1198), ch. 173, p. 563, § 32, effective July 1.
COMMENT
Given the long history of open courts in the United States, this section may seem axiomatic, redundant, or unnecessary. In fact, because this principle has not always been universal, it is important to recognize that the Convention confirms that an individual residing in a Convention country may file a petition directly in a tribunal of another Convention country without requesting the assistance of a central authority or a support enforcement agency. Given the variety of legal systems that may be involved under the Convention, this freedom of choice is explicitly protected. A person residing in a Convention county, whether a citizen or a noncitizen of the United States, may apply to a tribunal in the United States for establishment, recognition, and enforcement of a child-support order for enforcement of a spousal support order, for recognition and enforcement of a foreign support agreement, and in some situations, for modification of an existing support order. Of course, the freedom of an individual to petition for relief in a tribunal says nothing about the nature of legal representation, if any, implicit in the right of access to a tribunal, is that representation may be pro se or by private counsel. See Section 309.
Subsection (a) provides that an individual party may file a proceeding directly in a tribunal, thus submitting to the jurisdiction of the tribunal and to state law. The object of the proceeding may be establishment of a support order, determination of parentage of a child, or modification of an existing support order.
Subsection (b) recognizes that an individual party may file a proceeding in a tribunal requesting recognition and enforcement of a Convention support order, or a foreign support agreement as defined in Section 710. The party thereby chooses not to seek the services of a central authority or support enforcement agency. Nonetheless, the individual will be affected indirectly by the terms of the Convention because the proceeding is subject to Sections 706 through 713, which are drawn from the Convention. This effect applies to an individual residing in a Convention country and to an individual residing elsewhere who is seeking to enforce a Convention support order.
Subsection (c) contains two provisions drawn from the Convention specifically applicable to a petition for recognition and enforcement of a Convention support order. First, a guarantee of payment of costs may not be required. Second, if the individual has benefited from free legal assistance in a Convention country, that individual is entitled to free legal assistance if it is available in similar circumstances under the law of the responding state.
Under subsection (d) an individual party who files a direct request regarding a Convention support order in a tribunal is not entitled to assistance from the governmental entity, i.e. the support enforcement agency.
Subsection (e) echoes Article 52 of the Convention. An individual party who files a petition in a tribunal may take advantage of any "simplified, more expeditious procedures" which may be available in the requested state, so long as they are "compatible with the protection offered to the parties under articles 23 and 24" of the Convention.
Convention source: art. 14. Effective access to procedures; art. 17. Applications not qualifying under Article 15 or Article 16; art. 37. Direct requests to competent authorities; art.52, Most effective rule.
Related to Convention: ch. II. Administrative co-operation, arts.4-8; ch. III. Applications through central authorities, arts. 9-17; art. 20. Bases for recognition and enforcement; art. 25. Documents; art. 27. Findings of fact; art. 28. No review of the merits; art. 37. Direct requests to competent authorities; art. 56. Transitional provisions.
14-5-706. Registration of Convention support order.
- Except as otherwise provided in this part 7, a party who is an individual or that is a support enforcement agency seeking recognition of a Convention support order shall register the order in this state as provided in part 6 of this article.
-
Notwithstanding sections 14-5-311 and 14-5-602 (a), a request for registration of a Convention support order must be accompanied by:
- A complete text of the support order or an abstract or extract of the support order drawn up by the issuing foreign tribunal, which may be in the form recommended by The Hague Conference on Private International Law;
- A record stating that the support order is enforceable in the issuing country;
- If the respondent did not appear and was not represented in the proceedings in the issuing country, a record attesting, as appropriate, either that the respondent had proper notice of the proceedings and an opportunity to be heard or that the respondent had proper notice of the support order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal;
- A record showing the amount of arrears, if any, and the date the amount was calculated;
- A record showing a requirement for automatic adjustment of the amount of support, if any, and the information necessary to make the appropriate calculations; and
- If necessary, a record showing the extent to which the applicant received free legal assistance in the issuing country.
- A request for registration of a Convention support order may seek recognition and partial enforcement of the order.
- A tribunal of this state may vacate the registration of a Convention support order without the filing of a contest under section 14-5-707 only if, acting on its own motion, the tribunal finds that recognition and enforcement of the order would be manifestly incompatible with public policy.
- The tribunal shall promptly notify the parties of the registration or the order vacating the registration of a Convention support order.
Source: L. 2015: Entire part R&RE, (HB 15-1198), ch. 173, p. 564, § 32, effective July 1.
COMMENT
Subsection (a) integrates the Convention support order into the registration for enforcement procedure set forth in Sections 601 through 608. A state support enforcement agency and a tribunal will use basically the same procedures for a Convention order under this article as would be used in a non-Convention proceeding.
From inception, UIFSA contained detailed provisions for substantive procedures for interstate child- support orders. To facilitate expedited processing, detailed statutory instructions have encouraged uniformity of legal documents. The Convention follows this precedent. The list of documents to be provided, however, is somewhat different than the documents described in Sections 311 and 602. In order to ensure that a document satisfying the requirements of the Convention will be accepted by a support enforcement agency or tribunal, subsection (a) identifies the documents required to accompany an application under the Convention.
Several of the required documents may be unfamiliar in the United States, e.g., the authority to provide an abstract or an extract of an order rather than the complete text of an order under paragraph (b)(1); the requirement for a statement of enforceability of the order under paragraph (b)(2); proof that the respondent had proper notice of the proceedings and an opportunity to be heard if the respondent did not appear and was not represented under (b)(3); and proof that the applicant received free legal assistance in the issuing country under paragraph (b)(6).
Subsection (c) provides that a petitioner may request only partial enforcement of a support order, see Section 709. infra , which speaks to partial enforcement by a tribunal.
Subsections (d) and (e) authorize action by a tribunal available under the Convention that may not be available under other state law. Subsection (d) permits the tribunal to vacate registration, acting on its own motion, under certain exceptional circumstances, and subsection (e) requires that notice be promptly provided of any such order vacating registration. Such ex officio review, if used to refuse recognition of an order, is in tension with the core UIFSA policy of requiring recognition. In any event, the subsections are not a vehicle for a review of the merits of the decision. An example would be useful here, but there is none in the Explanatory Report to the Convention, just the negative reference that a country could not use this to enforce a policy against ordering support for a child born out of wedlock. http://www.hcch.net/upload/expl38.pdf. Perhaps an example could be that the court might reject an application to establish support from a biological parent whose rights had been terminated and the child was subsequently adopted.
Convention source: art. 25. Documents; art. 21. Severability and partial recognition and enforcement; art. 22. Grounds for refusing recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement; art. 25. Documents.
Related to Convention: art. 11. Application contents; art. 20. Bases for recognition and enforcement.
14-5-707. Contest of registered Convention support order.
- Except as otherwise provided in this part 7, sections 14-5-605 through 14-5-608 apply to a contest of a registered Convention support order.
- A party contesting a registered Convention support order shall file a contest not later than thirty days after notice of the registration, but if the contesting party does not reside in the United States, the contest must be filed not later than sixty days after notice of the registration.
- If the nonregistering party fails to contest the registered Convention support order by the time specified in subsection (b), the order is enforceable.
- A contest of a registered Convention support order may be based only on grounds set forth in section 14-5-708. The contesting party bears the burden of proof.
-
In a contest of a registered Convention support order, a tribunal of this state:
- Is bound by the findings of fact on which the foreign tribunal based its jurisdiction; and
- May not review the merits of the order.
- A tribunal of this state deciding a contest of a registered Convention support order shall promptly notify the parties of its decision.
- A challenge or appeal, if any, does not stay the enforcement of a Convention support order unless there are exceptional circumstances.
Source: L. 2015: Entire part R&RE, (HB 15-1198), ch. 173, p. 565, § 32, effective July 1.
COMMENT
Subsection (a) states the general rule that a contest of a registration is generally governed by Sections 605 through 608, supra . Subsection (b), however, establishes separate, longer time frames to contest the registration of a Convention support order than for filing a contest as established in Section 605. If notice of contest is to be given in the United States, the time difference is relatively modest, i.e., 30 days instead of 20. A more significant difference is created for out-of-country notice, i.e., 60 days instead of 20. Arguably this takes into account that providing notice to a party in a foreign country may take longer than ordinarily expected. In any event, the longer time frames are specifically required in connection with a Convention order. Note that while the principle may always be true that notice to a party situated in a foreign country may take longer, the additional times for notice apply only to an order subject to the Convention.
Subsections (c)-(g) transform Convention language into UIFSA terminology. Subsection (g), which prohibits a stay in enforcement pending a challenge or appeal except in exceptional circumstances, is another substantive provision required by the Convention. It does not apply in non-Convention cases, in which domestic law determines whether a stay of enforcement should be granted pending an appeal or other challenge.
Convention source: art. 23. Procedure on an application for recognition and enforcement; art. 27. Findings of fact; art. 28. No review of the merits.
Related to Convention: art. 20. Bases for recognition and enforcement; art. 21. Severability and partial recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement; art. 27. Findings of fact; art. 28. No review of the merits.
14-5-708. Recognition and enforcement of registered Convention support order.
- Except as otherwise provided in subsection (b) of this section, a tribunal of this state shall recognize and enforce a registered Convention support order.
-
The following grounds are the only grounds on which a tribunal of this state may refuse recognition and enforcement of a registered Convention support order:
- Recognition and enforcement of the order is manifestly incompatible with public policy, including the failure of the issuing tribunal to observe minimum standards of due process, which include notice and an opportunity to be heard;
- The issuing tribunal lacked personal jurisdiction consistent with section 14-5-201;
- The order is not enforceable in the issuing country;
- The order was obtained by fraud in connection with a matter of procedure;
- A record transmitted in accordance with section 14-5-706 lacks authenticity or integrity;
- A proceeding between the same parties and having the same purpose is pending before a tribunal of this state and that proceeding was the first to be filed;
- The order is incompatible with a more recent support order involving the same parties and having the same purpose if the more recent support order is entitled to recognition and enforcement under this article in this state;
- Payment, to the extent alleged arrears have been paid in whole or in part;
-
In a case in which the respondent neither appeared nor was represented in the proceeding in the issuing foreign country:
- If the law of that country provides for prior notice of proceedings, the respondent did not have proper notice of the proceedings and an opportunity to be heard; or
- If the law of that country does not provide for prior notice of the proceedings, the respondent did not have proper notice of the order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal; or
- The order was made in violation of section 14-5-711.
-
If a tribunal of this state does not recognize a Convention support order under subsection (b)(2), (4), or (9) of this section:
(1) The tribunal may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new Convention support order; and
(2) The state department of human services shall take all appropriate measures to request a child support order for the obligee if the application for recognition and enforcement was received under section 14-5-704.
Source: L. 2015: Entire part R&RE, (HB 15-1198), ch. 173, p. 565, § 32, effective July 1.
COMMENT
Enforceability; the general rule, with exceptions. Subsection (a) states the general proposition that if a child-support order is issued by a tribunal in a Convention country, except as otherwise provided in subsection (b), the order shall be recognized and enforced. In domestic cases UIFSA requires recognition of child-support order of a sister state, 28 U.S.C.A. § 1738B, Full Faith and Credit for Child Support Orders Act (FFCCSOA). Receipt of a child-support order from a sister state is routinely processed and enforced. Critical examination of the sister state order for defects is not called for; it is the responsibility of the respondent to assert any defenses available. Moreover, experience has shown that child-support orders are generally valid, for relatively modest amounts, and seldom subject to claims of fraud. The most common defect is one of mistake, rather than deliberate misconduct.
Subsection (b) combines provisions from four separate articles in the Convention. These articles provide an extensive number of specific reasons for a tribunal or support enforcement agency of one Convention country to refuse to recognize a child-support order from another Convention country. For this act to be consistent with the Convention, it is necessary to identify the potential defects of a support order from a Convention country in which a defendant might raise a challenge based on lack of jurisdiction, due process, or enforceability of an order for arrearages. The majority of these defects arguably are self-explanatory, and almost all are subject to factual dispute to be resolved by the tribunal, to wit: (b)(1) "manifestly incompatible" with public policy, including violation of minimum standards of due process; (b)(2) issued without personal jurisdiction over the individual party (discussed at length below) ; (b)(3) unenforceable in the issuing country; (b)(4) obtained by fraud in connection with a matter of procedure; (b)(5) the record lacks authenticity or integrity, e.g., forged; (b)(6) a prior proceeding is pending; (b)(7) a more recent support order is controlling; (b)(8) full or partial payment; (b)(9)(A),(B), no appearance, notice, or opportunity to be heard (discussed below) ; and, (b)(10) exceeds limitations and restraints on modification. As with domestic cases, the norm will be to recognize and enforce a foreign order absent a challenge by the respondent. Three provisions most likely to trigger a tribunal to refuse to recognize and enforce a foreign support order require more attention, i.e., subsections (b)(2), (4) and (9)(A), (B).
Of particular note, subsection (c) applies to a refusal to recognize and enforce a Convention order under any of these grounds. From the perspective of the United States, subsection (b)(2) is likely to be the primary reason for a tribunal to refuse to recognize and enforce a registered Convention support order. Key to its participation in the negotiations leading to the Convention, the United States insisted that a support order may be refused recognition by a tribunal if the issuing foreign tribunal lacked personal jurisdiction over the respondent. The facts underlying the Convention support order must be measured by a tribunal as consistent with the long-arm jurisdictional provisions of UIFSA. See Sections 201-202. A potential problem occurs only if a Convention support order cannot be enforced by a tribunal because there was no appropriate nexus between the foreign country and the respondent.
Subsection (c) provides that any of the reasons enumerated for not recognizing and enforcing a registered Convention support order, i.e., (b)(2), (4) and (9), will trigger the obligation of the tribunal not to dismiss the proceeding before allowing a reasonable time for a party to seek the establishment of a new child-support order. Moreover, if the Title IV-D support enforcement agency is involved, it must "take all appropriate measures to request a child-support order;" i.e., file a petition seeking to establish an initial child-support order by the tribunal. In that case, the tribunal shall treat the request for recognition and enforcement as a petition for establishment of a new order.
Two systems; direct and indirect jurisdiction. In drafting the Convention, the subject of the requisite jurisdiction to issue a support order generated considerable discussion. The choice divided itself into two distinct categories; rules of direct and indirect jurisdiction. Direct jurisdiction provides explicit bases on which a tribunal is vested with the power to assert its authority and enter a support order. See Section 201.
The UIFSA long-arm provisions are paradigm rules of direct jurisdiction. Section 201 identifies the bases on which a tribunal may assert personal jurisdiction over a nonresident individual, obligor or obligee, without regard to the current residence of the individual or child. As discussed in the comment to Section 201, supra , these long-arm jurisdictional rules for child support and spousal support orders were fashioned case-by-case by the Supreme Court, see Estin v. Estin , 334 U.S. 541, 68 S. Ct. 1213, 92 L. Ed. 1561 (1948); Vanderbilt v. Vanderbilt , 354 U.S. 416, 77 S. Ct. 1360, 1 L. Ed. 2d 1456 (1957) (spousal support); Kulko v. Superior Court , 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978) (child support).
An initial difficulty arose because some authorities from foreign countries expressed concern about the UIFSA long-arm statute. This was especially true regarding Section 201(a)(1), i.e., service of legal process that creates personal jurisdiction, sometimes called "tag or ambush jurisdiction." Some experts in civil law countries regard the claim that jurisdiction can be acquired merely by serving documents on an individual passing through, with no fundamental ties to the jurisdiction, as "exorbitant," and fundamentally unfair. Another provision eliciting criticism was Section 201(a)(6), which literally reads that an allegation of engaging in sexual intercourse in the state that "may have" resulted in conception will suffice to support a basis for issuing a child support-order.
Similarly, rules of jurisdiction recognized by civil law countries are contrary to the principles that apply to proceedings in the United States. The fact that residence of a child or an obligee in a forum is sufficient basis in most foreign countries to support a child-support order, even though the obligor has no personal nexus with the forum, is generally viewed as wholly inconsistent with notions of due process in the United States. Assuming the obligor has never been physically present in the forum and has not participated in any of the acts described in Section 201, an assertion of jurisdiction to establish a support order based solely on the residence of the obligee or child in that forum is widely regarded in the United States as unconstitutional.
The Convention adopts a rule of indirect jurisdiction which requires a tribunal to register and enforce the order of another tribunal if certain basic jurisdictional requirements have been satisfied. The Convention does not actually prescribe the bases on which the tribunal may assert jurisdiction, as UIFSA does in Section 201. Most commonly, in countries other than the United States if a child is a "habitual resident" of a country, a support order of a tribunal of that country will be recognized in another country. As a practical matter, although "habitual residence" of the obligee provides no basis for assertion of personal jurisdiction over the obligor in the United States, the home tribunal is almost always the preferred forum if the obligee has any basis under Section 201 to obtain long-arm jurisdiction over a non-resident obligor. That is, the actual custodian of the child is almost always the person who seeks to establish and enforce child support and, if possible, chooses to bring a proceeding in the state of residence of the obligee and the child. A tribunal that recognizes "habitual residence" as a basis for indirect jurisdiction would, accordingly, register and enforce an order from a tribunal in the "habitual residence" of the obligee or child without concern about whether the obligor has a nexus with that tribunal. Thus, most foreign concerns about the tenuous reaches of long-arm jurisdiction in the United States are obviated in practice.
The Convention eschews rules of direct jurisdiction, choosing instead to rely on half-a-dozen indirect rules of jurisdiction, "habitual residence" of any of the parties (respondent, creditor or child) being the most common. The focus of the Convention is to identify the bases on which a tribunal of one Convention country will be required to recognize the assertion of jurisdiction by a tribunal of another Convention country. When the Convention is in force in both countries, a support order issued by a tribunal of Country A will be enforced by a tribunal of Country B, provided that the order is enforceable in Country A, plus the host of other possible considerations discussed above. There are a limited number of exceptions, or "reservations," to such rules permitted under the Convention, which give rise to additional procedures noted below. Once recognition is accorded to a support order, the normal procedures available to enforce the order come into play. The routes to arrive at enforcement by way of direct or indirect jurisdiction are different, but the destination is the same.
Virtually all foreign countries recognize and enforce a child-support order based on the residence of the obligee or the child. The U.S. requirement of personal jurisdiction over the obligor is often regarded abroad as idiosyncratic. Nonetheless, the new Convention requires recognition of U.S. orders based on long-arm jurisdiction asserted over the obligor, a.k.a. "debtor" if the forum state is also the state of residence of the obligee, a.k.a. "creditor." From the perspective of a foreign tribunal, such an order should be considered valid, if only for creditor- or child-based jurisdictional reasons. The fact that the state tribunal requires a personal nexus between the parties and the tribunal is irrelevant to the foreign tribunal.
These distinct views of appropriate jurisdiction presented a genuine issue for resolution. The United States delegation took the position that, as a matter of constitutional law, its tribunals could not recognize and enforce creditor- or child-based support orders under certain factual circumstances accepted in other countries as providing appropriate jurisdiction. The conclusion of the delegation was that this approach conflicts with the Kulko decision, supra . The potential lack of nexus with the obligor, if jurisdiction was based solely on the "habitual residence" of the obligee, would present an impenetrable barrier to participation in the Convention by the United States.
Fairly early on in the Convention negotiations, a consensus developed that these different systems of jurisdiction could be accommodated. On the U.S. side, a challenge to a foreign child-support order will be rejected if the factual circumstances are sufficient to support an assertion of long-arm jurisdiction in the foreign tribunal. Rather obviously, the foreign tribunal need not, and almost certainly will not, consider whether there is a factual basis for establishing personal jurisdiction over the absent obligor based upon "minimum contacts" with the forum. This is not a part of the jurisprudence of the foreign tribunal. If a challenge to a support order is raised by the obligor when the order is sought for enforcement in a United States tribunal, however, that tribunal shall undertake a determination of whether the jurisdictional bases of Section 201 would have been applicable if that issue had been raised in the foreign tribunal. If so, the order is enforceable in this country, notwithstanding that the foreign tribunal based its decision on jurisdiction on the fact that the child or the obligee resided in that forum. See Convention art. 20(1)(c)-(d).
Asserting long-arm jurisdiction to establish a support order by a tribunal in a proceeding under UIFSA will be unaffected by the entry into force of the Convention. This will be true irrespective of whether the nonresident respondent resides in another state or in a foreign country, or even resides in a non-Convention foreign nation.
The term "habitually resident" is used in a number of private international law conventions, including the 2007 Maintenance Convention. The term is not defined in any of them. Rather, in common law countries its meaning is determined on a case-by-case basis by the practice and case law of each country. In the United States and elsewhere there is no consistent interpretation of the term by the courts considering it in the context of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The negotiators of the Convention from the United States made it clear that case law on the meaning of "habitually resident" in the child abduction context should not automatically be applied to child support cases. That is because the effect of the use of "habitual residence" in the 1980 Child Abduction Convention is intended to restrict the ability of a person to obtain a new custody order shortly after arriving in another country. In fact, one of the objects of the 1980 Convention is to limit the ability of a parent unhappy with the custody order of one court to "forum shop" by moving to another country and seeking a new order. In the 2007 Maintenance Convention, the object is to make it easier for an obligee to recover child support in an international case, not to restrict the ability of an obligee to apply for that support.
Due process under the Convention. Subsection (b)(9)(A) applies to a failure to give a party prior notice of the proceedings and an opportunity to be heard, which is the classic denial of due process in a proceeding in the United States.
Subsection (b)(9)(B) will be unfamiliar to practitioners in this country and requires some explanation. This provision recognizes the legitimacy of, and provides a method for challenge of, a support order which may be routinely entered in some administrative systems in an ex parte proceeding. The support order is issued without prior notice to the obligor or opportunity to be heard. The due process opportunity is provided after the ex parte decision. This system is currently in use in administrative proceedings in Australia and New Zealand. Because the respondent will not have participated in the original proceeding, the post facto due process allows the obligor an opportunity to challenge the decision on fact or law.
Convention source: art. 20. Bases for recognition and enforcement; art. 21. Severability and partial recognition and enforcement; art. 22. Grounds for refusing recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement; art. 25. Documents.
Related to Convention: art. 11. Application contents.
14-5-709. Partial enforcement.
If a tribunal of this state does not recognize and enforce a Convention support order in its entirety, it shall enforce any severable part of the order. An application or direct request may seek recognition and partial enforcement of a Convention support order.
Source: L. 2015: Entire part R&RE, (HB 15-1198), ch. 173, p. 566, § 32, effective July 1.
COMMENT
This section transforms Convention language into UIFSA terminology. If a responding tribunal is unable to enforce the entirety of a Convention support order, it shall enforce a severable part of the order. For example, a mother of a child may have another woman as her registered partner in a Convention country. If a support order provides support for both the mother and child support for the child, that part of the order awarding support to the mother from the registered partner may not be enforceable in some states. Nonetheless, a tribunal is obligated to recognize and enforce that part of the order for support of the child. The second sentence authorizes the mother to request enforcement only of the child support portion, see also Section 706 (c), supra .
Convention source: art. 21. Severability and partial recognition and enforcement.
Related to Convention: art. 20. Bases for recognition and enforcement.
14-5-710. Foreign support agreement.
- Except as otherwise provided in subsections (c) and (d) of this section, a tribunal of this state shall recognize and enforce a foreign support agreement registered in this state.
-
An application or direct request for recognition and enforcement of a foreign support agreement must be accompanied by:
- A complete text of the foreign support agreement; and
- A record stating that the foreign support agreement is enforceable as an order of support in the issuing country.
- The agreement is incompatible with a support order involving the same parties and having the same purpose in this state, another state, or a foreign country if the support order is entitled to recognition and enforcement under this article in this state; or
- The record submitted under subsection (b) of this section lacks authenticity or integrity.
- A tribunal of this state may vacate the registration of a foreign support agreement only if, acting on its own motion, the tribunal finds that recognition and enforcement would be manifestly incompatible with public policy.
-
In a contest of a foreign support agreement, a tribunal of this state may refuse recognition and enforcement of the agreement if it finds:
(1) Recognition and enforcement of the agreement is manifestly incompatible with public policy;
(2) The agreement was obtained by fraud or falsification;
- A proceeding for recognition and enforcement of a foreign support agreement must be suspended during the pendency of a challenge to or appeal of the agreement before a tribunal of another state or a foreign country.
Source: L. 2015: Entire part R&RE, (HB 15-1198), ch. 173, p. 567, § 32, effective July 1.
COMMENT
Section 701(6) provides an extensive definition of a "foreign support agreement," which is UIFSA terminology to make more readily understandable for U.S. bench and bar a process that is denominated as a "maintenance arrangement" in the Convention. Subsection (a) requires a state tribunal to recognize and enforce a foreign support agreement if the terms of this section are met. Most crucially, such an agreement must be accompanied by a document stating that the foreign support agreement is as enforceable as a support order would be in the country of origin.
This section basically translates into common parlance the procedure identified in Convention art. 30, which was the result of a very extended discussions about "authentic instruments and private agreements" during the negotiations on the Convention. In many countries, such an agreement is unknown insofar as enforcement by a tribunal is concerned. In the United States, a purely private agreement is treated as a form of contract, rather than as an order of a tribunal. Under the Convention, however, a foreign support agreement meeting the standards established in this section, and as defined in Section 701(6), is entitled to enforcement by the tribunal. Advantages for enforcement of child support binding on the parties in the country of origin stem from the inclusion of a foreign support agreement because there is a growing tendency internationally to promote amicable solutions and avoid contentious procedures. In view of the movement towards alternative methods of dispute resolution in the United States, this mechanism provides for recognition and enforcement of a dispute resolution system in some of the likely Convention countries. The absence of this provision would have been a loss for the Convention, and limited its usefulness for support agreements, particularly in the Scandinavian countries. Although the possibility of a reservation is available, the United States has not indicated that it intends to make such a reservation.
To reiterate, the key to enforcement is that the foreign support agreement must be "enforceable as a decision" in the foreign country of its origin (quoting the Convention). If such an agreement is enforceable only as a contract, it will not fall within the scope of this section. Another key provision is that under subsection (e) the enforcement proceeding will be suspended if the respondent challenges the underlying agreement in a tribunal that has jurisdiction to hear challenges to the agreement.
Convention source: art. 3. Definitions; art. 30. Maintenance arrangements.
14-5-711. Modification of Convention child support order.
-
A tribunal of this state may not modify a Convention child support order if the obligee remains a resident of the foreign country where the support order was issued unless:
- The obligee submits to the jurisdiction of a tribunal of this state, either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity; or
- The foreign tribunal lacks or refuses to exercise jurisdiction to modify its support order or issue a new support order.
- If a tribunal of this state does not modify a Convention child support order because the order is not recognized in this state, section 14-5-708 (c) applies.
Source: L. 2015: Entire part R&RE, (HB 15-1198), ch. 173, p. 567, § 32, effective July 1.
COMMENT
One goal of the Convention was to limit the number of multiple foreign orders with respect to the same parties to the extent possible. But, given differing laws and jurisdictional bases, consensus on limiting modification was reached only on the fact patterns presented by Section 711(a).
First, this section transforms Convention language into UIFSA terminology. The restriction identified on modification of a child-support order in subsection (a) strikes a familiar note. Similar to Section 611, supra , a restriction is placed on modification of a support order if the obligee remains in the issuing Convention country. Subsection (a)(1) provides an exception if, by failure to object, the obligee submits to the jurisdiction of another tribunal. Subsection (a)(2) is similar to Section 615, supra . From the perspective of the obligee, the restriction has virtually the same effect as found in Sections 205 and 611. That is, in effect the issuing foreign tribunal has a form of continuing, exclusive jurisdiction that it maintains over modification of the order so long as the obligee remains a resident of the country. The difference is that the protection against modification is accorded only to the obligee, and not to the obligor. Thus, under the Convention the obligee may be free to seek a modification in another forum notwithstanding the fact that the obligor remains in the issuing country but the obligee moves to another country, with the implicit requirement that the issuing foreign tribunal must have personal jurisdiction over the obligor to sustain the enforcement of modification by a state tribunal.
Subsection (b) requires a state tribunal to issue a new child-support order if the Convention order was founded on child-based jurisdiction, the foreign tribunal lacked personal jurisdiction over the obligor, and there is a request to establish an order in accordance with Section 708.
Convention source: art. 18. Limit on proceedings; art. 21. Severability and partial recognition and enforcement.
Related to Convention: art. 18. Limit on proceedings; art. 20. Bases for recognition and enforcement.
14-5-712. Personal information - limit on use.
Personal information gathered or transmitted under this part 7 may be used only for the purposes for which it was gathered or transmitted.
Source: L. 2015: Entire part R&RE, (HB 15-1198), ch. 173, p. 568, § 32, effective July 1.
COMMENT
This section is an almost word-for-word tracking of the Convention provision, rephrased in UIFSA terminology. This single sentence is illustrative of the different drafting rules for a uniform act and an international treaty. Although certainly not always adhered to, cardinal rules for drafting a uniform act include writing in the active voice, identifying the intended actor, and specifying the consequences for failure to follow the directive or ignore the proscription. Convention provisions, such as this one, are generally written in passive voice, the actor is not identified, and no penalty is specified for noncompliance. Insofar as the admirable goals of the provision are concerned, ambiguity in the statute, or an exception to the rule, must be resolved case-by-case.
Confidentiality is highly prized in the United States in many circumstances, e.g., the attorney-client privilege is protected to the maximum extent possible. Under other circumstances, the opposite is true, e.g., records of litigation are generally available, and a judicial decision is ordinarily in open court or public record. Neither goal is absolute. Section 312, supra , adds another exception, i.e., nondisclosure of information is sometimes required to protect the health, safety, or liberty of a party or a child. In a case in which there is a risk of domestic violence or parental kidnapping, nondisclosure may be crucial.
The anticipated breadth of application of this provision is to constrain individuals and entities subject to a Convention support order. Protection of personal information in this computerized world is increasingly important, whatever the medium or means of communication. Both the sender and recipient of personal information transmitted electronically are expected to take appropriate measures vis-…-vis their service providers to meet the requirements of this section. The exact meaning of the statutory phrase "for the purpose for which it was gathered or transmitted" will necessarily remain ambiguous until elaborated by statute, caselaw, or regulation.
Convention source: art. 38. Protection of personal data.
14-5-713. Record in original language - English.
A record filed with a tribunal of this state under this part 7 must be in the original language and, if not in English, must be accompanied by an English translation.
Source: L. 2015: Entire part R&RE, (HB 15-1198), ch. 173, p. 568, § 32, effective July 1.
COMMENT
The United States will declare that English is the official language for transmittals to this country. Further, the United States will make a reservation objecting to the use of French, the other official language of the Convention, as a default translation. Of course, the original order may be in French. The cost of translation is borne by the issuing state or Convention country.
Convention source: art. 44. Language requirements; art. 62. Reservations; art. 63. Declarations.
Related to Convention: art. 45. Means and costs of translation.
PART 8 INTERSTATE RENDITION
Cross references: For extradition procedures generally, see article 19 of title 16.
14-5-801. Grounds for rendition.
- For purposes of this part 8, "governor" includes an individual performing the functions of governor or the executive authority of a state covered by this article.
-
The governor of this state may:
- Demand that the governor of another state surrender an individual found in the other state who is charged criminally in this state with having failed to provide for the support of an obligee; or
- On the demand of the governor of another state, surrender an individual found in this state who is charged criminally in the other state with having failed to provide for the support of an obligee.
- A provision for extradition of individuals not inconsistent with this article applies to the demand even if the individual whose surrender is demanded was not in the demanding state when the crime was allegedly committed and has not fled therefrom.
Source: L. 93: Entire article R&RE, p. 1601, § 1, effective January 1, 1995. L. 2003: (b)(2) amended, p. 1262, § 44, effective July 1, 2004.
COMMENT
This section has not been amended substantively since 1968. Virtually no controversy has been generated regarding this procedure. Arguably application of subsection (c) is problematic in situations in which the obligor neither was present in the demanding state at the time of the commission of the crime nor fled from the demanding state. The possibility that an individual may commit a crime in a state without ever being physically present there has elicited considerable discussion and some case law. See "L. BRILMAYER, AN INTRODUCTION TO JURISDICTION IN THE AMERICAN FEDERAL SYSTEM," 329-335 (1986) (discussing minimum contacts theory for criminal jurisdiction); Rotenberg, Extraterritorial Legislative Jurisdiction and the State Criminal Law , 38 TEX. L. REV. 763, 784-87 (1960) (due process requires that the behavior of the defendant must be predictably subject to state's criminal jurisdiction); cf. Ex parte Boetscher , 812 S.W.2d 600 (Tex. Crim. App. 1991) (Equal Protection Clause limits disparate treatment of nonresident defendants); In re King , 3 Cal.3d 226, 90 Cal. Rptr. 15, 474 P.2d 983 (1970), cert. denied 403 U.S. 931 (enhanced offense for nonresidents impacts constitutional right to travel).
14-5-802. Conditions of rendition.
- Before making a demand that the governor of another state surrender an individual charged criminally in this state with having failed to provide for the support of an obligee, the governor of this state may require a prosecutor of this state to demonstrate that at least sixty days previously the obligee had initiated proceedings for support pursuant to this article or that the proceeding would be of no avail.
- If, under this article or a law substantially similar to this article, the governor of another state makes a demand that the governor of this state surrender an individual charged criminally in that state with having failed to provide for the support of a child or other individual to whom a duty of support is owed, the governor may require a prosecutor to investigate the demand and report whether a proceeding for support has been initiated or would be effective. If it appears that a proceeding would be effective but has not been initiated, the governor may delay honoring the demand for a reasonable time to permit the initiation of a proceeding.
- If a proceeding for support has been initiated and the individual whose rendition is demanded prevails, the governor may decline to honor the demand. If the petitioner prevails and the individual whose rendition is demanded is subject to a support order, the governor may decline to honor the demand if the individual is complying with the support order.
Source: L. 93: Entire article R&RE, p. 1601, § 1, effective January 1, 1995. L. 2003: (a) and (b) amended, p. 1263, § 45, effective July 1, 2004.
COMMENT
This section has not undergone significant change since 1968. Interstate rendition remains the last resort for support enforcement, in part because a governor may exercise considerable discretion in deciding whether to honor a demand for rendition of an obligor.
PART 9 MISCELLANEOUS PROVISIONS
14-5-901. Uniformity of application and construction.
In applying and construing this article, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
Source: L. 93: Entire article R&RE, p. 1602, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1263, § 46, effective July 1, 2004.
14-5-902. Transitional provision.
This article, as amended by House Bill 15-1198, enacted in 2015, applies to proceedings begun on or after July 1, 2015, to establish a support order or determine parentage of a child or to register, recognize, enforce, or modify a prior support order, determination, or agreement, whenever issued or entered.
Source: L. 93: Entire article R&RE, p. 1602, § 1, effective January 1, 1995. L. 2003: (b) added by revision, pp. 1263, 1275, §§ 47, 72. L. 2015: Entire section RC&RE, (HB 15-1198), ch. 173, p. 568, § 33, effective July 1.
Editor's note: Prior to the recreation and reenactment of this section in 2015, subsection (b) provided for the repeal of this section, effective July 1, 2004. (See L. 2003, pp. 1263, 1275.)
14-5-903. Severability clause.
If any provision of this article or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.
Source: L. 93: Entire article R&RE, p. 1602, § 1, effective January 1, 1995.
PART 10 COLORADO IMPLEMENTATION PROVISIONS
14-5-1001. Venue. (Repealed)
Source: L. 93: Entire article R&RE, p. 1602, § 1, effective January 1, 1995. L. 98: Entire section repealed, p. 753, § 2, effective July 1.
Editor's note: This section was amended by House Bill 98-1183. Those amendments will not become effective because of the repeal of the section by Senate Bill 98-139.
14-5-1002. Jurisdiction by arrest. (Repealed)
Source: L. 93: Entire article R&RE, p. 1602, § 1, effective January 1, 1995. L. 98: Entire section repealed, p. 754, § 3, effective July 1.
14-5-1003. Duty of officials of this state as responding state. (Repealed)
Source: L. 93: Entire article R&RE, p. 1603, § 1, effective January 1, 1995. L. 98: Entire section repealed, p. 754, § 4, effective July 1.
14-5-1004. Proceedings not to be stayed. (Repealed)
Source: L. 93: Entire article R&RE, p. 1603, § 1, effective January 1, 1995. L. 96: Entire section repealed, p. 593, § 5, effective July 1.
14-5-1005. Declaration of reciprocity - repeal. (Repealed)
Source: L. 93: Entire article R&RE, p. 1603, § 1, effective January 1, 1995. L. 2003: (b) added by revision, pp. 1263, 1275, §§ 48, 72.
Editor's note: (1) This section was similar to former § 14-5-144 as it existed prior to 1993.
(2) Subsection (b) provided for the repeal of this section, effective July 1, 2004. (See L. 2003, pp. 1263, 1275.)
14-5-1006. Interstate central registry - duties as the responding and initiating state - repeal. (Repealed)
Source: L. 93: Entire article R&RE, p. 1604, § 1, effective January 1, 1995. L. 94: (1) amended, p. 2644, § 103, effective July 1. L. 2003: (3) added by revision, pp. 1264, 1275, §§ 49, 72.
Editor's note: Subsection (3) provided for the repeal of this section, effective July 1, 2004. (See L. 2003, pp. 1264, 1275.)
14-5-1007. Enforcement of interstate income withholding. (Repealed)
Source: L. 94: Entire section added, p. 1547, § 27, effective January 1, 1995. L. 96: (4) and (5)(a) amended, p. 593, § 6, effective July 1. L. 97: (2)(e)(I) amended, p. 1264, § 7, effective July 1. L. 98: Entire section repealed, p. 754, § 5, effective July 1.
ARTICLE 6 NONSUPPORT
Section
14-6-101. Nonsupport of spouse and children - penalty.
- Any person who willfully neglects, fails, or refuses to provide reasonable support and maintenance for his spouse or for his children under eighteen years of age, whether natural, adopted, or whose parentage has been judicially determined, or who willfully fails, refuses, or neglects to provide proper care, food, and clothing in case of sickness for his spouse or such children or any such children being legally the inmates of a state or county home or school for children in this state, or who willfully fails or refuses to pay to a trustee, who may be appointed by the court to receive such payment, or to the board of control of such home or school the reasonable cost of keeping such children in said home, or any person, being the father or mother of children under eighteen years of age, who leaves such children with intent to abandon such children, or any man who willfully neglects, fails, or refuses to provide proper care, food, and clothing to the mother of his child during childbirth and attendant illness is guilty of a class 5 felony. It shall be an affirmative defense, as defined in section 18-1-407, C.R.S., to a prosecution under this section that owing to physical incapacity or other good cause the defendant is unable to furnish the support, care, and maintenance required by this section. No child shall be deemed to lack proper care for the sole reason that he is being provided remedial treatment in accordance with section 19-3-103, C.R.S.
- Repealed.
Source: L. 11: p. 527, § 1. C.L. § 5566. CSA: C. 83, § 1. CRS 53: § 43-1-1. L. 55: p. 287, § 1. C.R.S. 1963: § 43-1-1. L. 73: p. 547, § 1. L. 81: (1) amended, p. 901, § 1, effective May 27. L. 87: (1) amended, p. 815, § 16, effective October 1. L. 92: (2) repealed, p. 396, § 1, effective June 3; (1) amended, p. 202, § 7, effective August 1.
ANNOTATION
Analysis
- I. General Consideration.
- II. Elements of Offense and Excuses for Failure to Support.
- III. Pleading and Practice.
I. GENERAL CONSIDERATION.
Law reviews. For an article on "Ten Years of Domestic Relations in Colorado -- 1940-1950", see 27 Dicta 399 (1950). For article on "The Problem of Compelling Fathers to Support Their Dependent Children", see 27 Dicta 442 (1950). For article, "A Lawyer's Advice to the Unmarried Mother", see 31 Dicta 112 (1954). For article, "Highlights of the 1955 Colorado Legislative Session -- Domestic Relations", see 28 Rocky Mt. L. Rev. 66 (1955). For article, "Highlights of the 1955 Legislative Session -- Criminal Law and Procedure", see 28 Rocky Mt. L. Rev. 69 (1955). For note, "Enforcement of Support Duties in Colorado", see 33 Rocky Mt. L. Rev. 70 (1960). For note, "Aid to Families with Dependent Children -- A Study of Welfare Assistance", see 44 Den. L.J. 102 (1967).
Annotator's note. Cases relevant to § 14-6-101 decided prior to its earliest source, L. 11, p. 527 , § 1, have been included in the annotations to this section.
This article was held not to violate § 1 of art. V, Colo. Const. Pearman v. People, 64 Colo. 26, 170 P. 192 (1917); Wamsley v. People, 64 Colo. 521, 173 P. 425 (1918).
This section does not violate § 12 of art. II, Colo. Const., prohibiting imprisonment for debt. Martin v. People, 69 Colo. 60 , 168 P. 1171 (1917); People v. Elliott, 186 Colo. 65 , 525 P.2d 457 (1974).
Purpose. The felony nonsupport statute is designed to promote and protect the health and welfare of minor children and to prevent such children from becoming wards of the state. People v. Elliott, 186 Colo. 65 , 525 P.2d 457 (1974).
This article does not change the law as to the civil liability of the husband to furnish his wife reasonable support; it just provides a penalty in case he fails to do so, unless excused by physical incapacity or other good cause Poole v. People, 24 Colo. 510, 52 P. 1025 (1898).
Duty to support spouse ceases when marriage is dissolved unless an order of maintenance is entered in connection with the dissolution decree. Com. of Pennsylvania v. Barta, 790 P.2d 895 (Colo. App. 1990).
The nonsupport statutes such as this have been regarded only as enforcing, and not as creating, a duty on the part of husbands and fathers with reference to the support of wives and children. Kilpatrick v. People, 64 Colo. 209, 170 P. 956 (1918).
It simply makes the willful neglect of a duty theretofore existing a felony. People v. Driscoll, 72 Colo. 115, 209 P. 869 (1922).
The supreme court was fortified in limiting the court's authority to require security for the payment of alimony by reason of the fact that with respect to orders for the payment of sums required for the support and maintenance and education of the minor children of the parties, the general assembly had enacted this section which made it a felony for a husband to neglect, fail or refuse to provide reasonable support and maintenance for his minor children under the age of 16 years. Brown v. Brown, 131 Colo. 467 , 283 P.2d 951 (1955).
Therefore a father who neglects to discharge his natural, as well as his statutory, duty to his children "shall be deemed guilty of a felony", and may be imprisoned for so doing unless he provides a bond conditioned upon the support of such children. Brown v. Brown, 131 Colo. 467 , 283 P.2d 951 (1955).
Formerly, the primary obligation for the support of a minor child rested upon its father, and the fact that the mother was self-supporting did not serve to relieve the father of his obligation. McQuade v. McQuade, 145 Colo. 218 , 358 P.2d 470 (1960).
Obligation of mother now equal to that of father. The general assembly in 1973 reassessed the relative responsibilities of the parents with regard to support of their children and imposed an obligation on the mother equal to that of the father. People v. Elliott, 186 Colo. 65 , 525 P.2d 457 (1974).
Changing legislative view of role and capabilities of mother. This enlargement of the scope of protection for minor children suggests a legislative view that the role of the mother has expanded beyond the domestic sphere to which it had been relegated and that the economic abilities and opportunities of the parents are more nearly on a parity concerning their capability of providing support for their children. People v. Elliott, 186 Colo. 65 , 525 P.2d 457 (1974).
Since the father is under a legal duty or obligation to support his child in an adequate manner, resort to the courts may be had to enforce compliance, and such action is not made nonmaintainable because of statutory proceedings relating to the support of children in divorce, separate maintenance and annulment actions nor because of the statute relating to dependent and neglected children. McQuade v. McQuade, 145 Colo. 218 , 358 P.2d 470 (1960).
The inherent right to support belongs to the child, and there exists no reason to hinge the enforcement of such right upon the existence or nonexistence of statutory right in the mother to obtain a divorce or separate maintenance, or upon a statute designed for children neglected by both parents. McQuade v. McQuade, 145 Colo. 218 , 358 P.2d 470 (1960).
The rights of the child exist independent of the rights of the mother, and are enforceable in equity in the absence of a statute providing for relief in the express circumstances. McQuade v. McQuade, 145 Colo. 218 , 358 P.2d 470 (1960).
A dismissal of complaints seeking divorce and separate maintenance is not res judicata concerning the right of a minor child to compel adequate support by his father. McQuade v. McQuade, 145 Colo. 218 , 358 P.2d 470 (1960).
An alleged father of an illegitimate child, in any case where such child is under 16 years of age, may be prosecuted for failure to support it, without having been adjudged, in some prior proceeding, to be such father. Ortega v. Portales, 134 Colo. 537 , 307 P.2d 193 (1957).
This section contains the provision that any man who shall willfully refuse to support his legitimate or illegitimate child under 16 years of age shall be deemed guilty of a felony. Ortega v. Portales, 134 Colo. 537 , 307 P.2d 193 (1957).
No provision of the bastardy act has any bearing upon a prosecution under this section. Wamsley v. People, 64 Colo. 521, 173 P. 425 (1918).
The gravamen of the offense is not the fathering of the illegitimate child, but the failure to make provision for his support if and when it becomes a dependent child under the statute. Ortega v. Portales, 134 Colo. 537 , 307 P.2d 193 (1957).
This section does not attempt to punish the father for begetting or neglecting to support the child before the section took effect, but requires a defendant, as the father of a child, to contribute to his support and maintenance, thus relieving the mother or others upon whom the burden may chance to fall. Ortega v. Portales, 134 Colo. 537 , 307 P.2d 193 (1957).
The parent cannot be released of his duty to support the child by contract with anyone, but the fact that he entered into a contract and thereby made provisions for such support may have an important bearing upon the issue as to whether his neglect was willful or not. Laws v. People, 59 Colo. 562, 151 P. 433 (1915).
Although a bastardy prosecution under one statute is barred because not brought in time, an action may still be maintained under another statute for failure to support an illegitimate child. Ortega v. Portales, 134 Colo. 537 , 307 P.2d 193 (1957).
II. ELEMENTS OF OFFENSE AND EXCUSES FOR FAILURE TO SUPPORT.
"Support and maintenance" are of much broader import than "food, clothing, and shelter", and may include many things besides food and clothing, and shelter. Campbell v. People, 42 Colo. 228, 94 P. 256 (1908).
Construed as applying to the duty of the husband when the wife is sick, the "food, clothing, and shelter" are properly connected, and it seems to have been the intention of the general assembly to require the husband, whatever provision he may have made for his wife and minor children while they were well, that he furnish, not money, with which they may provide for their own comfort, but in the case of their sickness that he must, at his peril, provide them with proper food, clothing, shelter, and care. Campbell v. People, 42 Colo. 228, 94 P. 256 (1908).
An information alleging that defendant "did willfully fail, refuse, and neglect to provide proper food, clothing, and shelter, and care in case of sickness for his wife", was fatally defective, in that it failed to allege that defendant's wife was sick at the time it was charged he failed to provide for her. Campbell v. People, 42 Colo. 228, 94 P. 256 (1908).
The term "willfully" is defined as intentionally done without just cause, excuse or justification after notice and request for support. People v. Green, 178 Colo. 77 , 495 P.2d 549 (1972).
To be willful the neglect must have occurred while defendant knew, or ought to have known, that the need existed. Laws v. People, 59 Colo. 562, 151 P. 433 (1915).
Where willful neglect to support minor children is an element of an offense under this section, it is proper for a court to instruct the jury on intent. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).
Because this section provides that the willful neglect, failure or refusal to provide reasonable support for a minor child or children is an element of the offense, therefore intent is material in a case, and it is proper for a court to so instruct the jury. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).
Every person mentally capable of knowing right from wrong in relation to his acts is presumed to intend to do that which he does do, and to intend the natural and probable consequences of his act, and it is for a jury to determine the fact as to a defendant's intent, which may be shown by direct or by circumstantial evidence. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).
Intent is an act or a purpose of the mind rarely discoverable except by the acts of a person, and is manifested by the circumstances connected with the perpetration of an offense, and the sound mind and discretion of the accused. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).
The people sustained their burden of establishing that defendant willfully failed to provide the required child support when they showed that for a period of time he earned more than $400 per month and yet made no support payments. Gallegos v. People, 161 Colo. 158 , 420 P.2d 409 (1966).
A willful failure where the defendant is earning a salary has been defined, as intentionally done "without just cause, excuse or justification" after notice and request for support. Gallegos v. People, 161 Colo. 158 , 420 P.2d 409 (1966).
That part of this section which states that a defendant is guilty of nonsupport when he willfully fails to provide that required support "unless it shall appear that owing to physical incapacity or other good cause he is unable to furnish the support, care, and maintenance herein required", is not a true exception. Gallegos v. People, 161 Colo. 158 , 420 P.2d 409 (1966).
This is so because of the use of the term "willfully" in the first part of the section, and the supreme court holds that the word "willfully" is synonymous with the statutory expression which begins "unless it shall appear" Gallegos v. People, 161 Colo. 158 , 420 P.2d 409 (1966).
This renders the later clause surplusage since "willfully" necessarily implies lack of just cause, excuse or justification; thus, allegation of the willful (or felonious) nature of the act is all that is required. Gallegos v. People, 161 Colo. 158 , 420 P.2d 409 (1966).
Good cause is defined as a substantial or legal cause as distinguished from an assumed or imaginary pretense. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).
The question of good cause is properly for the jury. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957); Silcott v. People, 177 Colo. 451 , 492 P.2d 70 (1971).
Evidence that a father is capable of earning, and did earn good wages during a period of four months, is sufficient to show that his neglect to support minor children is not due to good cause. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).
The fact that a defendant has other demands upon his income, including support of a new family, does not constitute good cause for failure to support minor children. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).
A father's testimony that he has been in financial straits since the separation from his wife is not an excuse or good cause. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).
In a prosecution of a husband for failure to support his wife, he was not relieved from such support on account of the financial means of the wife. Poole v. People, 24 Colo. 510, 52 P. 1025 (1898).
It was immaterial that the wife had means of her own, such means not having been obtained from the husband. Poole v. People, 24 Colo. 510, 52 P. 1025 (1898).
If it had been established that the wife left the defendant without an adequate excuse, refused without reasonable grounds to return to him, and he offered and was willing to support her if she returned, he could not be convicted of willful nonsupport of his wife. Kilpatrick v. People, 64 Colo. 209, 170 P. 956 (1918).
The act of 1893, providing that any person living in this state who shall willfully neglect to provide support for his wife may be adjudged guilty of misdemeanor, did not affect the general powers of a court of equity to entertain suits to compel a husband to pay alimony consistent with his condition in life, and reasonable for the maintenance of his wife or his family or both. Dye v. Dye, 9 Colo. App. 320, 48 P. 313 (1897).
An allowance of temporary alimony to the wife in an action brought by her for divorce is not admissible evidence against the husband in a prosecution for nonsupport. Kilpatrick v. People, 64 Colo. 209, 170 P. 956 (1918).
One acquitted of sexual intercourse with an unmarried female under 18 years of age is not liable to prosecution under this section for failure to support the illegitimate child alleged to be the fruit of the same illicit intercourse averred in the first information. Reil v. People, 62 Colo. 567, 164 P. 315 (1917).
Under this section the father of an illegitimate child under 16 years of age may be prosecuted for his failure to support it, without any prior adjudication of the paternity and this whether the child were begotten before or after the enactment of the statute. Pearman v. People, 64 Colo. 26, 170 P. 192 (1917); Wamsley v. People, 64 Colo. 521, 173 P. 425 (1918).
Where, in a prosecution under this section, the child in question was not born in wedlock, the prosecution has the burden of showing parentage. Martin v. People, 60 Colo. 575, 155 P. 318 (1916).
The accused is entitled to deny that the child is his, and though a marriage with the mother is shown, he must be permitted to put in evidence that at the time of such marriage the woman was the wife of another, and to exclude the evidence is error. Martin v. People, 60 Colo. 575, 155 P. 318 (1916).
A decree of divorce which commits the child to the custody of the mother, and is silent as to the child's support, does not relieve the father of his duty. Desch v. Desch, 55 Colo. 79, 132 P. 60 (1913).
A divorced wife may, in an original action, recover of the father a reasonable sum for necessaries furnished by her for a child's support, after such decree, the recovery being commensurate with his means and station in life. Desch v. Desch, 55 Colo. 79, 132 P. 60 (1913).
III. PLEADING AND PRACTICE.
The word "feloniously" when used in an indictment or information has been held by the supreme court to be equivalent to the word "willfully", and its use satisfies the requirements of pleading the essential elements of the crime, though it is much better form to follow the precise statutory wording. Gallegos v. People, 161 Colo. 158 , 420 P.2d 409 (1966).
Where an information filed with a justice of the peace on January 18, 1897, charging a party with failure to support his wife alleged the time of the offense as "on or about the 19th day of September, and continuously since, A. D. 1897", it was held, that from the language employed charging the time when the offense was committed, it is fairly inferable that it was at a date prior to the filing of the information, and although it might have been successfully attacked at the proper time, by a motion on account of form, or ambiguity, it is too late to raise that question after trial. Poole v. People, 24 Colo. 510, 52 P. 1025 (1898).
In a prosecution under this section for failure to support an illegitimate child, it is not necessary to prove that the child is in need of support. Trujillo v. People, 122 Colo. 436 , 222 P.2d 775 (1950).
It was permissible to introduce into evidence the register of a hotel where the complainant testified she and defendant had stayed overnight, where the defendant acknowledged signatures in the register as his own. Trujillo v. People, 122 Colo. 436 , 222 P.2d 775 (1950).
The trial court's action in excluding a letter written by the complainant to defendant's witness was not prejudicial to the defendant where the effect of the whole letter was to entreat the witness to tell the truth, if he did testify. Trujillo v. People, 122 Colo. 436 , 222 P.2d 775 (1950).
Where the complainant denied having had sex relations with anyone other than the defendant, and the defense put on four witnesses to testify to her alleged promiscuity, it was not error for the complainant to testify in rebuttal of the testimony of the four witnesses. Trujillo v. People, 122 Colo. 436 , 222 P.2d 775 (1950).
In such a prosecution, the state must prove its case beyond a reasonable doubt, and it was not error for the trial court to refuse defendant's instruction which stated that the state had to prove its case simply by a preponderance of the evidence. Trujillo v. People, 122 Colo. 436 , 222 P.2d 775 (1950).
It was permissible to allow the doctor who attended complainant during her confinement to refresh his memory from a birth certificate which he made at the time even though the certificate was obtained from the local registrar of vital statistics. Trujillo v. People, 122 Colo. 436 , 222 P.2d 775 (1950).
Where there was judgment that defendant pay a certain sum monthly, etc., until the further order of the court, "and execute a bond in the sum, etc., for the faithful performance, etc., and upon failure, to be transported to the penitentiary to be there kept in close confinement at hard labor for three months", it was held a sufficient compliance with the statute. Poor v. People, 67 Colo. 60, 185 P. 467 (1919).
In a prosecution for willful failure to support minor children, evidence of a pending criminal case against a defendant, elicited on cross examination of defendant and within the scope of his direct examination, is not prejudicial. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).
Failure of the father to inquire as to the needs of the child was held, in view of the circumstances, insufficient to convict him of willful neglect. Laws v. People, 59 Colo. 562, 151 P. 433 (1915).
14-6-102. Suspension of sentence. (Repealed)
Source: L. 11: p. 528, § 2. C.L. § 5567. CSA: C. 83, § 2. CRS 53: § 43-1-2. C.R.S. 1963: § 43-1-2. L. 73: p. 548, § 2. L. 92: Entire section repealed, p. 396, § 2, effective June 3.
14-6-103. Extradition.
It is the duty of the district attorney or other proper officer, in any such case where the defendant is beyond the state of Colorado, to take all necessary and proper steps and proceedings to extradite such defendant and to obtain a requisition from the governor of the state of Colorado to the governor of the state in which such defendant may be found in order to secure his return from such state to the jurisdiction in which the case is being prosecuted. Extradition under this article shall be governed in accordance with the provisions of article 19 of title 16, C.R.S.
Source: L. 11: p. 529, § 3. C.L. § 5568. CSA: C. 83, § 3. CRS 53: § 43-1-3. C.R.S. 1963: § 43-1-3. L. 92: Entire section amended, p. 397, § 3, effective June 3.
Cross references: For extradition procedures generally, see article 19 of title 16.
14-6-104. Jurisdiction.
Courts of record in this state shall have jurisdiction under this article as provided in this section, and a complaint or information for the violation of this article may be filed in any court of record by the prosecuting attorney or other appropriate agency or before the county court of the county in which such offense defined in section 14-6-101 is committed.
Source: L. 11: p. 529, § 4. C.L. § 5569. CSA: C. 83, § 4. CRS 53: § 43-1-4. L. 61: p. 352, § 1. C.R.S. 1963: § 43-1-4. L. 64: p. 246, § 115. L. 92: Entire section amended, p. 397, § 4, effective June 3.
ANNOTATION
Law reviews. For article, "One Year Review of Criminal Law and Procedure", see 36 Dicta 34 (1959).
The juvenile court is a court of record, and, under this section has jurisdiction of an information for the nonsupport of the wife of the accused. Smith v. People, 64 Colo. 290, 170 P. 959 (1918).
This section also confers jurisdiction on the county court in nonsupport cases. Tucker v. People, 136 Colo. 581 , 319 P.2d 983 (1957).
14-6-105. Spouse competent witness.
In all proceedings or prosecutions under this article, a wife or husband shall be a competent witness against his spouse with or without his consent.
Source: L. 11: p. 530, § 5. C.L. § 5570. CSA: C. 83, § 5. CRS 53: § 43-1-5. C.R.S. 1963: § 43-1-5. L. 73: p. 548, § 3.
14-6-106. Venue.
If the offense charged is desertion or abandonment or neglect or refusal to provide such children or spouse with the necessary and proper home, care, food, and clothing, as provided in section 14-6-101, the offense shall be held to have been committed in any county of this state in which such children or spouse may be at the time such complaint is made.
Source: L. 11: p. 531, § 7. C.L. § 5571. CSA: C. 83, § 6. CRS 53: § 43-1-6. C.R.S. 1963: § 43-1-6. L. 73: p. 548, § 4.
14-6-107. Venue - home or school of child.
If the offense charged is the neglect or refusal to pay to the trustees of a child's home or school or the trustee who may be appointed by the court to receive such payment the reasonable cost of keeping such child, the offense shall be held to have been committed in the county where the child's home or school may be situated.
Source: L. 11: p. 531, § 8. C.L. § 5572. CSA: C. 83, § 7. CRS 53: § 43-1-7. C.R.S. 1963: § 43-1-7.
14-6-108. Citizenship - residence.
For all the purposes of this article 6, citizenship or residence once acquired in this state by any parent of a child living in this state continues until the child has arrived at the age of sixteen years, so long as the child continues to live in this state. In case of prosecution under this article 6 for the violation of any of the provisions of this article 6, such citizenship or residence likewise continues so long as the spouse or parent resides in this state and is entitled to the support or maintenance provided for in section 14-6-101.
Source: L. 11: p. 531, § 9. C.L. § 5573. CSA: C. 83, § 8. CRS 53: § 43-1-8. C.R.S. 1963: § 43-1-8. L. 73: p. 548, § 5. L. 2018: Entire section amended, (SB 18-095), ch. 96, p. 753, § 7, effective August 8.
Cross references: For the legislative declaration in SB 18-095, see section 1 of chapter 96, Session Laws of Colorado 2018.
ANNOTATION
Annotator's note. A case relevant to § 14-6-108 decided prior to its earliest source, L. 11, p. 531 , § 9, has been included in the annotations to this section.
In a prosecution for the failure of a husband to support his wife, it is not necessary to allege in the information that the defendant is a resident of the state. Poole v. People, 24 Colo. 510, 52 P. 1025 (1898).
Nonresidents are excepted from the operation of this section, but it is not necessary to negate the exceptions because if the defendant was a nonresident, that was a matter of defense. Poole v. People, 24 Colo. 510, 52 P. 1025 (1898).
14-6-109. Forfeiture of bond - disposition of fines.
- In accordance with the laws of this state, bond shall be set by the court. Pursuant to subsection (2) of this section, where the defendant has been released upon deposit of cash, stocks, or bonds, or upon surety bond secured by property, if the defendant fails to appear in accordance with the primary condition of the bond, the court shall declare a forfeiture. Notice of the order of forfeiture shall be mailed immediately by the court to the defendant and sureties, if any, at last known address. If the defendant does not appear and surrender to the court having jurisdiction within thirty days from the date of the forfeiture, or within that period satisfy the court that appearance and surrender by the defendant is impossible and without the defendant's fault, the court shall enter judgment against the defendant and the sureties, if any, for the amount of the bail and costs of the court proceedings.
- Any moneys collected or paid upon any such execution or in any case upon said bond shall be turned over to the clerk of the court in which the bond is given to be applied to the child support obligation, including where the obligation is assigned to the department of human services pursuant to section 26-2-111 (3), C.R.S.
Source: L. 11: p. 531, § 10. C.L. § 5574. CSA: C. 83, § 9. CRS 53: § 43-1-9. C.R.S. 1963: § 43-1-9. L. 73: p. 549, § 6. L. 92: Entire section amended, p. 398, § 5, effective June 3. L. 94: (2) amended, p. 2644, § 104, effective July 1. L. 97: (1) amended, p. 561, § 4, effective July 1; (2) amended, p. 1240, § 36, effective July 1.
Cross references: For the legislative declaration contained in the 1994 act amending subsection (2), see section 1 of chapter 345, Session Laws of Colorado 1994.
14-6-110. Joint liability for family expenses.
The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately.
Source: L. 1891: p. 238, § 1. R.S. 08: § 3021. C.L. § 5575. CSA: C. 83, § 10. CRS 53: § 43-1-10. C.R.S. 1963: § 43-1-10.
ANNOTATION
Law reviews. For comment on Wall v. Crawford, appearing below, see 11 Rocky Mt. L. Rev. 207 (1939). For article, "The Seller of One Mink Coat v. Pvt. Johnnie Doe", see 29 Dicta 148 (1952). For article, "One Year Review of Torts", see 38 Dicta 93 (1961). For comment on Nitzel v. Colorado Indus. Bank, appearing below, see 34 Rocky Mt. L. Rev. 240 (1962). For article, "The Big, Bad D's: Debts and Death in Divorce - Part I", see 25 Colo. Law. 57 , (July 1996).
This section has not the effect to relieve the father of the duty to support his minor child, so far as the child is incapable of self-support, even though, upon divorce, the child is committed to the mother, and the decree makes no provision for its support. Desch v. Desch, 55 Colo. 79, 132 P. 60 (1913).
This section was not given a retroactive effect so as to cover contracts made before its passage. Kelly v. Canon, 6 Colo. App. 465, 41 P. 833 (1895).
Where the wife lives apart from the husband, with the children, the liability of the husband for clothing furnished to the children without his authority, depends upon common-law principles, and this section regarding family expenses has no application. O'Brien v. Galley-Stockton Shoe Co., 65 Colo. 70, 173 P. 544 (1918).
The duties of the wife, as wife, form the consideration for the husband's liability for her maintenance, and if she is guilty of offenses against the marital relation that entitles her husband to a divorce, and by reason thereof they do not live together, her contracts for necessaries will not bind the unoffending husband. Denver Dry Goods Co. v. Jester, 60 Colo. 290, 152 P. 903 (1915).
Where the parties were not living together as a family in fact, at the time the goods were sold, it is conceded that this section, relative to family expenses has no application. Denver Dry Goods Co. v. Jester, 60 Colo. 290, 152 P. 903 (1915).
Before this section can be invoked, a primary obligation upon either the husband or the wife, for the debt sought to be charged against them, must be established. Parker v. Joslin Dry Goods Co., 52 Colo. 238, 120 P. 1042 (1911).
In the absence of fraud between the husband and a family creditor, debts for family expenses, though contracted by the husband, bind the property of both husband and wife; agreements of the husband concerning such expenses are binding upon both; the cause of action accrues against both at the maturity of a note given for such expenses, not at the time the debt was contracted; renewal of the note by the husband alone does not discharge the lien; and the statute of limitations does not run in favor of either from the maturity of the first note, but of the new one. Wall v. Crawford, 103 Colo. 66 , 82 P.2d 749 (1938).
A wife can be compelled to pay an indebtedness for something of which the family, or some one or more of its members, has had the actual benefit since it was incurred for family expenses. Straight v. McKay, 15 Colo. App. 60, 60 P. 1106 (1900).
Either husband or wife may incur indebtedness for the family expenses, and for such indebtedness either or both will be liable. Straight v. McKay, 15 Colo. App. 60, 60 P. 1106 (1900).
Outside of the expenses of the family and the education of the children, neither can impose an obligation upon the other. Straight v. McKay, 15 Colo. App. 60, 60 P. 1106 (1900).
What should be included in the term, "family expenses", must be determined by the facts and circumstances of each case, subject to the limitation, that an article or articles must have been purchased for, and used in or by, the family, or some member thereof. Houck v. La Junta Hdwe. Co., 50 Colo. 228, 114 P. 645 (1911).
A buggy purchased by the husband, while living with the wife, and which is used not only by the husband, but by the members of the family, while they are so living together, is a family expense for which the wife is liable. Houck v. La Junta Hdwe. Co., 50 Colo. 228, 114 P. 645 (1911).
Food and clothing are family expenses, and so are luxuries purchased for the use of the family, because such expenses are not confined to necessaries, but to be family expenses they must be for things received by the family, or some member of the family. Straight v. McKay, 15 Colo. App. 60, 60 P. 1106 (1900).
The expenses of procuring a team of horses used on the family farm is a family expense. Wall v. Crawford, 103 Colo. 66 , 82 P.2d 749 (1938).
The rent of a house which the family does not occupy is not a family expense. Straight v. McKay, 15 Colo. App. 60, 60 P. 1106 (1900).
Applicability of family expense doctrine. Under the family expense doctrine, furniture which is used by and purchased for the family would be an obligation of the husband of the debtor even though he was not the contracting party, while personal property to be used by the debtor alone does not seem to be a family expense. In re Stanton-Rieger, 25 B.R. 650 (Bankr. D. Colo. 1982).
Goods sold to the husband on the sole credit of a third person are not a charge upon the family, though consumed in the family. Parker v. Joslin Dry Goods Co., 52 Colo. 238, 120 P. 1042 (1911).
Under this section the goods of the wife are chargeable with the lien equally with those of the husband. McDonnell v. Solomon, 64 Colo. 226, 170 P. 951 (1918).
Funeral expenses come within the purview of this section. Espinoza v. Gurule, 144 Colo. 381 , 356 P.2d 891 (1960).
Where plaintiffs become obligated for funeral expenses of their deceased son under this section, such obligation being imposed upon them by the wrongful act of defendant, they are entitled to recover such expenses in an action at law. Espinoza v. Gurule, 144 Colo. 381 , 356 P.2d 891 (1960).
The fact that petitioner may not be legally liable for his wife's necessities under this section has no application to the homestead provisions, their purpose, and effect. Haas v. De Laney, 165 F. Supp. 488 (D. Colo. 1958).
Where at the time of filing the homestead entry and at the time of bankruptcy, a bankrupt was the head of a family, he was therefore entitled to claim a homestead exemption even though his wife had been absent at the time of filing for more than four years, and no family existed so as to make the bankrupt liable for the wife's expenses under the provisions of this section. Haas v. De Laney, 165 F. Supp. 488 (D. Colo. 1958).
Where a counterclaim on the note as a holder in due course was limited by the provisions thereof, it could not be asserted as a claim against the husband as a family expense as there was no evidence in the record showing that the husband legally assumed or agreed to pay the indebtedness, and he could not be held liable. Nitzel v. Colo. Indus. Bank, 145 Colo. 215 , 358 P.2d 31 (1960).
14-6-111. Legislative declaration.
It is hereby declared to be the policy of the state of Colorado that, in order to promote the life, health, property, and public welfare of this state, it is necessary to establish procedures to assist in the collection of child support, maintenance where combined with child support, and maintenance.
Source: L. 61: p. 354, § 1. CRS 53: § 43-1-11. C.R.S. 1963: § 43-1-11. L. 87: Entire section amended, p. 593, § 16, effective July 10.
ANNOTATION
Law reviews. For article, "One Year Review of Domestic Relations", see 39 Dicta 102 (1962).
14-6-112. Procedures by clerk. (Repealed)
Source: L. 61: p. 354, § 2. CRS 53: § 43-1-12. C.R.S. 1963: § 43-1-12. L. 72: p. 558, § 14. L. 92: Entire section repealed, p. 399, § 6, effective June 3.
14-6-113. Remedies additional to those now existing.
The remedies provided in this article are in addition to and not in substitution for any other remedies.
Source: L. 61: p. 355, § 3. CRS 53: § 43-1-13. C.R.S. 1963: § 43-1-13.
ARTICLE 7 PARENT AND CHILD
Cross references: For support proceedings, see article 6 of title 19; for the "Uniform Interstate Family Support Act", see article 5 of this title; for the "Colorado Children's Code", see title 19.
Section
14-7-101. Commitment of child - parent liable for support.
The commitment of any child, under any law of this state, to any state institution shall not relieve the parents or legal guardian of such child from responsibility for the support of the child. It is the duty of any court committing any child to any state institution or any private institution where such child is kept at the expense of the county or state, at the time of the commitment, to forthwith notify the district attorney, if a state expense, and the county attorney, if a county expense, of the name and address of such parents and such other information as may be adduced at any hearing of such case concerning the financial responsibility of the parents to care for such child. In order to obtain such information, any court committing any child, at the time of commitment or at any convenient time to be designated by the court, is authorized to require the attendance of the parents or legal guardian upon such court to be examined under oath concerning the property, possessions, and financial responsibility of such parents or legal guardian.
Source: L. 05: p. 295, § 1. R.S. 08: § 4739. C.L. § 5587. CSA: C. 121, § 1. CRS 53: § 43-3-1. C.R.S. 1963: § 43-3-1.
ANNOTATION
The fathering of an illegitimate child in and of itself is not a "tortious act" in regard to the long arm statute. In re People, 30 Colo. App. 603, 498 P.2d 1166 (1972).
14-7-102. Action by state or county for support of child.
The state of Colorado or the county, as the case may be, at whose expense such child is kept shall be entitled to recover from the parent, legal guardian, or other person responsible for the support of such child such sum for the care, support, and maintenance of the child as may be reasonable therefor, and in no case shall such sum be less than the per capita monthly or yearly amount of expense in the institution in which the child is confined or the actual expense incurred by the state or county for the care and maintenance of such child. Any action or proceeding by the state or county against any parent shall be conducted in accordance with the procedure in civil cases. In case any action is maintained by the state, it shall be brought in the name of the people of the state of Colorado, and any moneys recovered in any action shall be paid to the state treasurer and credited to the particular fund for the benefit of the institution having the custody and care of such child. If an action is maintained by the county in cases where the county pays the expense of the care and maintenance of such child, such action shall be in the name of the board of county commissioners of such county or other body performing the functions of a board of county commissioners, and any amount collected in any such action shall be paid to the county treasurer of such county. When such action is prosecuted to a final judgment and judgment is rendered in favor of the people of the state of Colorado or the board of county commissioners of the county prosecuting such action, as the case may be, an execution may issue against the property of the defendant as in other civil cases.
Source: L. 05: p. 295, § 2. R.S. 08: § 4740. C.L. § 5588. CSA: C. 121, § 2. CRS 53: § 43-3-2. C.R.S. 1963: § 43-3-2.
ANNOTATION
This section expressly commands complete parental reimbursement of the actual expense incurred by the county for the care and maintenance of the child, does not condition the parents' obligation on their financial ability to pay, and embodies a legislative policy that the parents shoulder the entire financial burden of the child's placement. M.S. v. People, 812 P.2d 632 (Colo. 1991).
The language of §§ 19-1-115 (4)(d) and 26-5-102 conflicts with this section since those sections speak in terms of the parents' ability to pay and this section imposes absolute liability without regard for the parents financial condition. M.S. v. People, 812 P.2d 632 (Colo. 1991).
Sections 19-1-115 (4)(d) and 26-5-102 are specific provisions concerning dependency and neglect adjudications and, with regard to the parental support obligation, control over this section. M.S. v. People, 812 P.2d 632 (Colo. 1991).
Once child has been adjudicated dependent or neglected and placed pursuant to § 19-1-115, the responsibility to reimburse state for costs for residential care is governed by § 19-1-115 (4)(d), not this section. People ex rel. B.S.M., 251 P.3d 511 (Colo. App. 2010).
14-7-103. District and county attorneys to report actions.
On or before December 1 of each year, it shall be the duty of the district attorney and the county attorney to make a written report to the governor of the state, stating the number of reports, provided for in section 14-7-101, received from the courts of the county or state and the nature and result of any action directed in this article by such officers respectively to recover from such parents the expenses of the care and maintenance of such children. If no action has been taken, such report shall detail the reason for the failure of the officer to take action. It is the duty of the county commissioners to pay any court costs or other expenses necessary for the prosecution of any suit provided for in this article. Nothing in this article shall be construed to repeal any law of this state concerning the responsibility of parents to support their children, or providing for the punishment of parents or other persons responsible for the delinquency or dependency of children, or providing for the punishment of any parents for the nonsupport of their children; and nothing in such law shall prevent proceedings under this article in any proper case.
Source: L. 05: p. 296, § 3. R.S. 08: § 4741. C.L. § 5589. CSA: C. 121, § 3. CRS 53: § 43-3-3. C.R.S. 1963: § 43-3-3.
14-7-104. Application of article.
This article 7 does not apply to liability for the support of children admitted, certified, committed, or transferred to any public institution of this state supervised by the department of human services for the care, support, maintenance, education, or treatment of a person with a behavioral or mental health disorder or a person with an intellectual and developmental disability.
Source: L. 64: p. 492, § 4. C.R.S. 1963: § 43-3-5. L. 94: Entire section amended, p. 2644, § 105, effective July 1. L. 2006: Entire section amended, p. 1396, § 39, effective August 7. L. 2017: Entire section amended, (HB 17-1046), ch. 50, p. 157, § 6, effective March 16; entire section amended, (SB 17-242), ch. 263, p. 1294, § 112, effective May 25.
Cross references: For the legislative declaration contained in the 1994 act amending this section, see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017.
14-7-105. Recovery for child support debt. (Repealed)
Source: L. 79: Entire section added, p. 638, § 3, effective June 7. L. 81: Entire section repealed, p. 910, § 4, effective June 8.
DISSOLUTION OF MARRIAGE - PARENTAL RESPONSIBILITIES
ARTICLE 10 UNIFORM DISSOLUTION OF MARRIAGE ACT
Editor's note: (1) This article was numbered as article 1 of chapter 46, C.R.S. 1963. The provisions of this article were repealed and reenacted in 1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1971, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume.
(2) For the legality of common-law marriages in this state, see Graham v. Graham, 130 Colo. 225 , 274 P.2d 605 (1954).
Law reviews: For article, "Divorce Mediation: A Financial Perspective", see 13 Colo. Law. 1650 (1984); for article, "Tax Consequences of Dissolution of Marriage Under the 1984 Tax Reform Act -- Parts I and II", see 13 Colo. Law. 2012 and 2222 (1984); for article, "Dramatic Divorce Taxation Changes", see 13 Colo. Law. 2038 (1984); for article, "The Civil Service Retirement Spouse Equity Act of 1984", see 14 Colo. Law. 1413 (1985); for article, "Joinder of Claims and Counterclaims in Cases Under the Uniform Dissolution of Marriage Act", see 15 Colo. Law. 1818 (1986); for article, "Cohabitation Agreements in Colorado", see 15 Colo. Law. 979 (1986); for article, "Common Law Marriage in Colorado", see 16 Colo. Law. 252 (1987); for article, "Child Support Obligations After Death of the Supporting Parent", see 16 Colo. Law. 790 (1987); for article, "Ownership of Personal Property Accumulated During a Marriage", see 17 Colo. Law. 623 (1988); for article, "Dissolution of Marriage and Estate Planning Issues", see 18 Colo. Law. 439 (1989); for article, "ADR: Explanations, Examples and Effective Use", see 18 Colo. Law. 843 (1989); for article, "Divorce and Family Mediation: Must it be Confidential?", see 18 Colo. Law. 925 (1989); for article, "Update on Ethics and Malpractice Avoidance in Family Law -- Parts I and II", see 19 Colo. Law. 465 and 647 (1990); for article, "Annulments in Colorado", see 22 Colo. Law. 2249 (1993); for article, "Property Division in Dissolution: Partnership Versus Needs Analysis", see 23 Colo. Law. 2115 (1994); for article, "Protecting a Disabled Client in a Dissolution of Marriage Action", see 24 Colo. Law. 795 (1995); for casenote, "Inappropriate Application of the Best Interests of the Child Standard Leads to Worst Case Scenario: In re C.C.R.S.", see 68 U. Colo. L. Rev. 259 (1997); for article, "Interstate Family Law Jurisdiction: Simplifying Complex Questions", see 31 Colo. Law. 77 (Sept. 2002); for article, "Marital Agreements in Colorado", see 36 Colo. Law. 53 (Feb. 2007); for article, "Colorado Civil Union Act", see 42 Colo. Law. 91 (July 2013); for article, "The Motion in Limine: Use in Domestic Relations Cases", see 43 Colo. Law. 47 (March 2014).
Section
14-10-101. Short title.
This article shall be known and may be cited as the "Uniform Dissolution of Marriage Act".
Source: L. 71: R&RE, p. 520, § 1. C.R.S. 1963: § 46-1-1.
ANNOTATION
Law reviews. For note, "The Extraterritorial Validity of Colorado Divorces", see 7 Rocky Mt. L. Rev. 271 (1935). For article, "Divorce -- Stalemate", see 16 Dicta 107 (1939). For article, "What Divorce Statutes Are Now in Effect in Colorado?", see 21 Dicta 68 (1944). For article, "Ten Years of Domestic Relations in Colorado -- 1940-1950", see 27 Dicta 399 (1950). For article, "Workmen's Compensation, Attorneys and Family Law", see 31 Dicta 1 (1954). For article, "A Proposal for Some Modest Changes in Divorce and Annulment Laws", see 26 Rocky Mt. L. Rev. 221 (1954). For article, "Colorado's New Divorce Law", see 35 Dicta 219 (1958). For note, "The New Colorado Divorce Statute", see 31 Rocky Mt. L. Rev. 207 (1959). For article, "Due Process in Involuntary Civil Commitment and Incompetency Adjudication Proceedings: Where Does Colorado Stand?", see 46 Den. L.J. 516 (1969). For article, "Divorce Policy and Divorce Reform", see 42 U. Colo. L. Rev. 403 (1971). For article, "Effects of Reconciliation on Separation Agreements in Colorado", see 51 U. Colo. L. Rev. 399 (1980). For article, "Mediation of Contested Child Custody Disputes", see 11 Colo. Law. 336 (1982). For article, "Colorado: Now a Community Property State?", see 25 Colo. Law. 55 (May 1996). For article, "Blending Spousal Tort Claims and Colorado Divorce Actions", see 25 Colo. Law. 57 (May 1996).
Act applicable regardless of date marriage began. Regardless of the date the marriage began, if the dissolution of marriage occurs after the effective date of this article, the parties are subject to all provisions of the uniform act. In re Lester, 647 P.2d 688 (Colo. App. 1982).
14-10-102. Purposes - rules of construction.
- This article 10 must be liberally construed and applied to promote its underlying purposes.
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The underlying purposes of this article 10 are:
- To promote the amicable settlement of disputes that have arisen between parties to a marriage;
- To mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage;
- To make the law of legal dissolution of marriage more effective for dealing with the realities of matrimonial experience by making an irretrievable breakdown of the marriage relationship the sole basis for its dissolution; and
- To provide safeguards for a parent with a disability, pursuant to the provisions of section 24-34-805.
Source: L. 71: R&RE, p. 520, § 1. C.R.S. 1963: § 46-1-2. L. 2018: Entire section amended, (HB 18-1104), ch. 164, p. 1133, § 2, effective April 25.
ANNOTATION
Every state as a sovereign has rightful and legitimate concern in marital status of those persons who are domiciled within the state. Viernes v. District Court, 181 Colo. 284 , 509 P.2d 306 (1973).
Marriage is favored over less formalized relationships. The state of Colorado has an interest in marriage, and marriage is favored over less formalized relationships which exist without the benefit of marriage. In re Newman v. Newman, 653 P.2d 728 ( Colo. 1982 ).
Temporary support orders further purpose of article to mitigate potential harm to spouses and their children caused by the process of legal dissolution of marriage by maintaining status quo pending final disposition of dissolution proceeding. In re Price, 727 P.2d 1073 (Colo. 1986).
Joinder of interspousal tort claims with marriage dissolution proceedings precluded. Marriage dissolution action cannot be joined with an interspousal claim sounding in tort since this section encourages the amicable settlement of disputes between parties to a marriage. Simmons v. Simmons, 773 P.2d 602 (Colo. App. 1988); In re Lewis, 66 P.3d 204 (Colo. App. 2003).
Dissolution court lacks jurisdiction to determine whether a parent should be removed as custodian of a Uniform Gift to Minors Act account. This issue may be considered instead by a district court that obtains jurisdiction over the account in a separate civil proceeding. In re Ludwig, 122 P.3d 1056 (Colo. App. 2005).
This act provides separate sections that govern the different elements of a dissolution order, specifically property disposition, maintenance, child support, and attorney fees. The court is required to make separate orders regarding these elements based on separate considerations, and may not commingle one element with another. In re Huff, 834 P.2d 244 (Colo. 1992).
The public policies to be furthered under this act include dividing of assets equitably and mitigating the harm to spouses and children. These policies take precedence over any contract arguments that may be raised by either spouse. Thus, the trial court was correct in refusing husband's indemnification argument and in interpreting the divorce decree as requiring the husband to compensate the wife for the fair market value of business property apportioned to her in the equitable distribution. In re Plesich, 881 P.2d 379 (Colo. App. 1994).
14-10-103. Definitions and interpretation of terms.
- As used in this article, unless the context otherwise requires, the term "decree" includes the term "judgment"; and, for the purposes of the tax laws of the state of Colorado or of any other jurisdiction, the term "maintenance" includes the term "alimony".
- Whenever any law of this state refers to or mentions divorce, annulment, or separate maintenance, said law shall be interpreted as if the words dissolution of marriage, declaration of invalidity of marriage, and legal separation, respectively, were substituted therefor.
- On and after July 1, 1993, the term "visitation" has been changed to "parenting time". It is not the intent of the general assembly to modify or change the meaning of the term "visitation" nor to alter the legal rights of a parent with respect to the child as a result of changing the term "visitation" to "parenting time".
- On and after February 1, 1999, the term "custody" and related terms such as "custodial" and "custodian" have been changed to "parental responsibilities". It is not the intent of the general assembly to modify or change the meaning of the term "custody" nor to alter the legal rights of any custodial parent with respect to the child as a result of changing the term "custody" to "parental responsibilities".
- As used in this article 10, unless the context otherwise requires, for purposes of proceedings for allocation of parental responsibilities pursuant to section 14-10-123 (1.5) only, the term "child" means an unmarried individual who has not attained twenty-one years of age.
Source: L. 71: R&RE, p. 520, § 1. C.R.S. 1963: § 46-1-4. L. 72: p. 595, § 73. L. 73: p. 552, § 1. L. 93: (3) added, p. 576, § 5, effective July 1. L. 98: (3) amended and (4) added, p. 1376, § 1, effective February 1, 1999. L. 2019: (5) added, (HB 19-1042), ch. 55, p. 193, § 4, effective March 28.
Cross references: For the legislative declaration contained in the 1993 act enacting subsection (3), see section 1 of chapter 165, Session Laws of Colorado 1993.
14-10-104. Uniformity of application and construction.
- This article shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this article among those states which enact it.
- The term "irretrievable breakdown" shall be construed as being similar to other terms having a like import in the law of other jurisdictions adopting this or a similar law.
Source: L. 71: R&RE, p. 520, § 1. C.R.S. 1963: § 46-1-3.
ANNOTATION
Applied in In re Parsons, 30 P.3d 868 (Colo. App. 2001).
14-10-104.5. Legislative declaration.
The general assembly recognizes that it is in the best interests of the parties to a marriage in which a dissolution has been granted and in which there are children of the marriage for the parties to be able to resolve disputes that arise subsequent to the dissolution in an amicable and fair manner. The general assembly further recognizes that, in most cases, it is in the best interests of the children of the marriage to have a relationship with both parents, including a parent with a disability, and that, in most cases, it is the parents' right to have a relationship with their children. The general assembly emphasizes that one of the underlying purposes of this article 10 is to mitigate the potential harm to the spouses and their children and the relationships between the parents and their children caused by the process of legal dissolution of marriage. The general assembly recognizes that when a marriage in which children are involved is dissolved, both parties either agree to or are subject to orders that contain certain obligations and commitments. The general assembly declares that the honoring and enforcing of those obligations and commitments made by both parties are necessary to maintaining a relationship that is in the best interest of the children of the marriage. Therefore, the general assembly declares that both parties should honor and fulfill all of the obligations and commitments made between the parties and ordered by the court.
Source: L. 88: Entire section added, p. 633, § 8, effective July 1. L. 98: Entire section amended, p. 1376, § 2, effective February 1, 1999. L. 2018: Entire section amended, (HB 18-1104), ch. 164, p. 1134, § 3, effective April 25.
ANNOTATION
The state has a public interest in mitigating the potential harm to children caused by the dissolution of marriage. Thus, a parent has no privacy interest in the process by which child support obligations are determined because support levels are not purely private determinations but serve a public function and are subject to court approval. Stillman v. State, 87 P.3d 200 (Colo. App. 2003).
Furthermore, the child support guidelines do not infringe upon a fundamental right. Stillman v. State, 87 P.3d 200 (Colo. App. 2003).
Nor do the child support guidelines discriminate against a suspect class or significantly interfere with a fundamental right. Stillman v. State, 87 P.3d 200 (Colo. App. 2003).
The state has a legitimate interest in requiring divorced or separated parents to provide child support based on the parties' combined gross incomes. Stillman v. State, 87 P.3d 200 (Colo. App. 2003).
Intent of act requires enforcement of child support agreement even though it does not specify a dollar amount. To allow otherwise would be to allow father to unilaterally terminate child support obligation without first obtaining an order of modification. In re Meisner, 807 P.2d 1205 (Colo. App. 1990).
14-10-105. Application of Colorado rules of civil procedure.
- The Colorado rules of civil procedure apply to all proceedings under this article, except as otherwise specifically provided in this article.
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A proceeding for dissolution of marriage, legal separation, or declaration of invalidity of marriage shall be entitled "In re the Marriage of ........ and ..........". A proceeding for the allocation of parental responsibilities or a support proceeding shall be entitled "In re the (Parental responsibilities concerning) (Support of) ..........".
(2.5) A proceeding for dissolution of a civil union, legal separation, or declaration of invalidity of a civil union shall be entitled "In re the Civil Union of ........ and ........".
- The initial pleading in all proceedings under this article shall be denominated a petition. A responsive pleading shall be denominated a response. Other pleadings and all pleadings in other matters under this article shall be denominated as provided in the Colorado rules of civil procedure.
Source: L. 71: R&RE, p. 521, § 1. C.R.S. 1963: § 46-1-5. L. 98: (2) amended, p. 1395, § 33, effective February 1, 1999. L. 2013: (2.5) added, (SB 13-011), ch. 49, p. 163, § 13, effective May 1.
ANNOTATION
Annotator's note. Since § 14-10-105 is similar to repealed § 46-1-2, C.R.S. 1963, and CSA, C. 56, § 3, relevant cases construing those provisions have been included in the annotations to this section.
The rules of civil procedure, where the divorce statutes are silent as to any method of procedure, govern. Myers v. Myers, 110 Colo. 412 , 135 P.2d 235 (1943); Holman v. Holman, 114 Colo. 437 , 165 P.2d 1015 (1946).
The rules of civil procedure apply to a divorce action, unless a contrary rule appears in the divorce statutes. Bacher v. District Court, 186 Colo. 314 , 527 P.2d 56 (1974).
Service of notice in proceedings under this article is governed by the rules of civil procedure. In re Henne, 620 P.2d 62 (Colo. App. 1980).
On the question of venue in divorce actions, C.R.C.P. 98(c) is controlling, notwithstanding this article concerning divorce actions and kindred matters. People ex rel. Stanko v. Routt County Court, 110 Colo. 428 , 135 P.2d 232 (1943); Brownell v. District Court ex rel. County of Larimer, 670 P.2d 762 ( Colo. 1983 ).
For the purpose of the venue requirements in C.R.C.P. 98, the petitioner and respondent in a dissolution of marriage proceeding are the equivalent of a plaintiff and defendant, respectively. Brownell v. District Court ex rel. County of Larimer, 670 P.2d 762 (Colo. 1983).
There is no specific venue statute which would override the rules of civil procedure. Bacher v. District Court, 186 Colo. 314 , 527 P.2d 56 (1974).
The rules of procedure do not govern procedure and practice in actions in divorce where they may conflict with the procedure and practice provided by the applicable statutes. Moats v. Moats, 168 Colo. 120 , 450 P.2d 64 (1969).
There is no exception in this section which dispenses with the necessity of filing a motion for a new trial, or which permits the court in the exercise of its discretion to dispense with such a motion. In re Franks, 189 Colo. 499 , 542 P.2d 845 (1975).
Order under C.R.C.P. 54(b) authorized. This section, providing that the Colorado rules of civil procedure apply to dissolution proceedings except as "otherwise specifically provided in the act", and § 14-10-120 , providing that a decree of dissolution of marriage is "final" when entered, subject to the right of appeal, authorize the trial court to enter an order pursuant to C.R.C.P. 54(b) making the decree final for purposes of appeal. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).
Appealability of decree on entry of such order. Upon the entry of an order under C.R.C.P. 54(b) a decree of dissolution of marriage may be appealed prior to entry of permanent orders on the issues of child custody, support, and division of property. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).
Applied in Hubbard v. District Court, 192 Colo. 98 , 556 P.2d 478 (1976); Menne v. Menne, 194 Colo. 304 , 572 P.2d 472 (1977); In re Femmer, 39 Colo. App. 277, 568 P.2d 81 (1977); In re Gallegos, 41 Colo. App. 116, 580 P.2d 838 (1978); M & G Engines v. Mroch, 631 P.2d 1177 (Colo. App. 1981); In re Boyd, 643 P.2d 804 (Colo. App. 1982).
14-10-106. Dissolution of marriage - legal separation.
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The district court shall enter a decree of dissolution of marriage or a decree of legal separation when:
- The court finds that one of the parties has been domiciled in this state for ninety-one days next preceding the commencement of the proceeding;
- The court finds that the marriage is irretrievably broken; and
- The court finds that ninety-one days or more have elapsed since it acquired jurisdiction over the respondent either as the result of process pursuant to rule 4 of the Colorado rules of civil procedure or as the result of the act of the respondent in joining as copetitioner in the petition or in entering an appearance in any other manner.
- In connection with every decree of dissolution of marriage or decree of legal separation and to the extent of its jurisdiction to do so, the court shall consider, approve, or allocate parental responsibilities with respect to any child of the marriage, the support of any child of the marriage who is entitled to support, the maintenance of either spouse, and the disposition of property; but the entry of a decree with respect to parental responsibilities, support, maintenance, or disposition of property may be deferred by the court until after the entry of the decree of dissolution of marriage or the decree of legal separation upon a finding that a deferral is in the best interests of the parties.
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In a proceeding to dissolve a marriage or in a proceeding for legal separation or in a proceeding for declaration of invalidity, the court is deemed to have made an adjudication of the parentage of a child of the marriage if the court acts under circumstances that satisfy the jurisdictional requirements of section 14-5-201 and the final order:
- Expressly identifies a child as a "child of the marriage", "issue of the marriage", or similar words indicating that the husband is the father of the child; or
- Provides for support of the child by the husband unless paternity is specifically disclaimed in the order.
- Paternity is not adjudicated for a child not mentioned in the final order.
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The district court shall enter a decree of dissolution of marriage or a decree of legal separation when:
- If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form unless the other party objects.
Source: L. 71: R&RE, p. 521, § 1. C.R.S. 1963: § 46-1-6. L. 73: p. 552, § 2. L. 77: (1)(a)(I) and (1)(a)(II) amended and (1)(a)(III) added, p. 823, § 1, effective June 1. L. 98: (1)(b) amended, p. 1395, § 34, effective February 1, 1999. L. 2003: (1)(c) and (1)(d) added, p. 1264, § 50, effective July 1. L. 2012: IP(1)(a) and (1)(b) amended, (HB 12-1233), ch. 52, p. 187, § 1, effective July 1; (1)(a)(I) and (1)(a)(III) amended, (SB 12-175), ch. 208, p. 830, § 24, effective July 1.
ANNOTATION
Analysis
I. GENERAL CONSIDERATION.
Law reviews. For article on residence of plaintiff in divorce action, see 25 Dicta 110 (1948). For article, "Ten Years of Domestic Relations in Colorado -- 1940-1950", see 27 Dicta 399 (1950). For comment on People v. District Court, appearing below, see 31 Dicta 118 (1954). For article, "One Year Review of Civil Procedure and Appeals", see 37 Dicta 21 (1960). For article, "One Year Review of Domestic Relations", see 37 Dicta 55 (1960). For article, "One Year Review of Domestic Relations", see 40 Den. L. Ctr. J. 115 (1963). For article, "Child Support Obligations After Death of the Supporting Parent", see 16 Colo. Law. 790 (1987). For article, "'Til Death Do Us Part", see 46 Colo. Law. 34 (July 2017).
Annotator's note. Since § 14-10-106 is similar to repealed §§ 46-1-2 and 46-1-3, C.R.S. 1963, §§ 46-1-2 and 46-1-3, CRS 53, CSA, C. 56, §§ 6 and 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
An action for divorce is of a purely personal nature. Morris v. Propst, 98 Colo. 213 , 55 P.2d 944 (1936); Wood v. Parkerson, 163 Colo. 271 , 430 P.2d 467 (1967).
The power of the court in such an action to issue decrees relative to alimony, to exonerate the wife's estate from the husband's claims, and to make orders relative to the care and custody of the children is merely incidental to the primary object of changing the status or relation of the parties to each other. Wood v. Parkerson, 163 Colo. 271 , 430 P.2d 467 (1967).
Such actions, in the absence of a statute providing to the contrary, abate absolutely upon the death of either party before judgment, and cannot be revived in the name of or against the representatives of the deceased party. Wood v. Parkerson, 163 Colo. 271 , 430 P.2d 467 (1967).
Masters should not be appointed as a routine matter in divorce cases where the issues are not complex and the facts are not complicated. Carlson v. Carlson, 178 Colo. 283 , 497 P.2d 1006 (1972).
The trial court may, for good cause shown, allow an extension of time within which to file an answer in a divorce action, even though the original time within which to file has expired. Reap v. Reap, 142 Colo. 354 , 350 P.2d 1063 (1960).
Not abuse to refuse continuance when party could not appear. It is not an abuse of discretion for the court to refuse to grant a continuance at a hearing as to the question of dissolution of the marriage, where the wife could not appear at the hearing. In re Lester, 647 P.2d 688 (Colo. App. 1982).
Deferring property division. A specific finding that it is in the best interest of the parties to defer the property division is required to prevent unwarranted delays in dividing property in dissolution of marriage cases. That purpose is complied with when the parties are given time limits within which to submit their proposals for the property division. In re Rose, 40 Colo. App. 176, 574 P.2d 112 (1977).
II. DOMICILE OR RESIDENCY REQUIRED.
Domicile is keystone for jurisdiction to determine the marital status, and domicile of one of the parties to the divorce action is required. Viernes v. District Court, 181 Colo. 284 , 509 P.2d 306 (1973).
Jurisdiction cannot be conferred by consent; lack of residence cannot be waived. Watson v. Watson, 135 Colo. 296 , 310 P.2d 554 (1957); McMillion v. McMillion, 31 Colo. 33 , 497 P.2d 331 (1972).
Actual bona fide residence is essential and must be established with some degree of certainty. Watson v. Watson, 135 Colo. 296 , 310 P.2d 554 (1957).
Unless the residence required by this section is in some manner shown, the court is without jurisdiction. People ex rel. Plunkett v. District Court, 127 Colo. 483 , 258 P.2d 483 (1953).
When bona fide residence in a county is not established, the court is under a mandatory duty to refuse to hear or grant any motions whatever in an action, and its dismissal must follow. People ex rel. Plunkett v. District Court, 127 Colo. 483 , 258 P.2d 483 (1953).
Under statutes pertaining to jurisdiction in divorce proceedings, the word "residence" is synonymous with the legal meaning of the word "domicile", and a person's domicile, once established, continues until he acquires legal residence or domicile elsewhere. McMillion v. McMillion, 31 Colo. App. 33, 497 P.2d 331 (1972).
Residence requires domicile. Residence for the purposes of divorce jurisdiction has always required and continues to require domicile. Viernes v. District Court, 181 Colo. 284 , 509 P.2d 306 (1973).
Where husband's residency was established by an earlier proceeding as being in Colorado, that determination is res judicata and creates a presumption that he is still a resident, absent a showing that a new residency has been established. McMillion v. McMillion, 31 Colo. App. 33, 497 P.2d 331 (1972).
Where jurisdictional facts are admitted in pleadings, decree is not void for failing to recite them. Jones v. Jones, 71 Colo. 420, 207 P. 596 (1922).
Failure to allege 90-day residence immediately prior to proceeding is not fatal. Section 14-10-107 does not require that a petition for dissolution of marriage contain an allegation that the residency period includes the 90 days immediately prior to the commencement of the proceeding, and petitioner's failure to make her allegation in the words of this section was not a fatal defect. In re Alper, 33 Colo. App. 225, 517 P.2d 404 (1973).
Purpose of residency requirements was to prevent nonresidents from establishing temporary residence to obtain divorce. Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902); Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488 (1911).
An alien who made this state his home, in good faith, and had no residence elsewhere, was a citizen within the meaning of the former statute. Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488 (1911).
Where no witness testified to plaintiff's residence, in answer to any direct question, but in effect it appeared that he had resided here for many years prior to the institution of his action, it was held a compliance with the statute. Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488 (1911).
Where plaintiff alleged and proved more than a year's residence in Colorado before the commencement of the action, but defendant at the time of filing his cross complaint had resided in Colorado less than one year, the allegations of plaintiff's complaint vested the court with jurisdiction of plaintiff and the subject matter. Harms v. Harms, 120 Colo. 212 , 209 P.2d 552 (1949).
Where prior to the trial plaintiff had registered to vote in Colorado, his automobile was registered in Colorado, he had a Colorado driver's license, and for several months prior to trial he has been engaged in part-time civilian employment in Colorado Springs in a field in which he intended to continue on his retirement, and plaintiff had for four years been present in Colorado in military service, the foregoing facts formed a sound basis for the finding of the trial judge that the court had jurisdiction based on residence. Mulhollen v. Mulhollen, 145 Colo. 479 , 358 P.2d 887 (1961).
Mere presence in state as member of armed forces insufficient to confer jurisdiction but after 90 days domicile may be established. A serviceman may establish a Colorado domicile to support jurisdiction for a Colorado court to grant a decree of dissolution of marriage after he has been stationed in Colorado for 90 days. Viernes v. District Court, 181 Colo. 284 , 509 P.2d 306 (1973).
III. DISTRICT COURT'S JURISDICTION.
The district courts are invested by the statute with jurisdiction in this class of actions. Pleyte v. Pleyte, 1 Colo. App. 70, 28 P. 23 (1891).
Only a final decree of divorce in a foreign state constitutes a bar to a divorce action in Colorado. In re Quay, 647 P.2d 693 (Colo. App. 1982).
Formerly, where a complaint alleged that the parties were residents of the state of Colorado, and that defendant had been guilty of acts of mental cruelty committed within the state of Colorado, and prayed for divorce alleging sufficient facts to give the court jurisdiction. Raygor v. Raygor, 29 Colo. App. 453, 485 P.2d 930 (1971).
Service by publication insufficient for jurisdiction in custody issue. Service by publication pursuant to the uniform act is not sufficient to vest a trial court with jurisdiction to resolve a custody issue. In re Blair, 42 Colo. App. 270, 592 P.2d 1354 (1979).
A trial court which in fact lacks jurisdiction over the subject matter cannot acquire jurisdiction even though the parties expressly or impliedly consent thereto. Triebelhorn v. Turzanski, 149 Colo. 558 , 370 P.2d 757 (1962).
The jurisdiction of the district court of Adams county, arising from the filing and disposition of the divorce action would not preclude the district court of the city and county of Denver from proceeding pursuant to the reciprocal support act when the mother and children had moved to Nevada. Scheer v. District Court, 147 Colo. 265 , 363 P.2d 1059 (1961).
A district court is without jurisdiction to hear a divorce action involving two members of a reservation Indian tribe. Whyte v. District Court, 140 Colo. 334 , 346 P.2d 1012 (1959), cert. denied, 363 U.S. 829, 80 S. Ct. 1600, 4 L. Ed. 2d 1524 (1960).
Where the trial court had jurisdiction to divide property at the time of entry of a final decree of divorce, but did not do so, nor then reserve the matter for further consideration, it lost jurisdiction to thereafter make a valid division of such property. Triebelhorn v. Turzanski, 149 Colo. 558 , 370 P.2d 757 (1962); Kelley v. Kelley, 161 Colo. 486 , 423 P.2d 315 (1967).
Trial court, which had personal jurisdiction over husband but lacked the authority to divide the husband's military pension as marital property, did not retain jurisdiction to divide the pension at a later date. Even though final decree provided that trial court had continuing jurisdiction over the action and that the wife would remain entitled to any and all military benefits, the court did not have the authority to divide military pension as a result of subsequent case law declaring such pensions to be marital property. Language in final decree refers only to the court's continuing authority to divide property as such court had on the date of the final decree. In Re Booker, 833 P.2d 734 (Colo. 1992).
Federal act specifying whether the court has jurisdiction over a military member's pension preempts state rules of procedure governing jurisdiction. In Re Booker, 833 P.2d 734 (Colo. 1992).
Jurisdiction retained until all matters resolved. A district court which properly acquires jurisdiction of the parties and subject matter in a dissolution action retains that jurisdiction until all matters arising out of the litigation are resolved. Gonzales v. District Court, 629 P.2d 1074 (Colo. 1981).
Jurisdiction does not extend to resolution of all financial issues. Jurisdiction to grant a divorce does not automatically include the right to resolve all financial issues between the parties to the marriage. Viernes v. District Court, 181 Colo. 284 , 509 P.2d 306 (1973).
The dissolution court has jurisdiction to grant relief but only in equity and not at law. Tort claims concerning property that was the subject of the dissolution court may not be joined into an otherwise equitable dissolution proceeding. In re Mockelmann, 121 P.3d 335 (Colo. App. 2005).
Where it appears from a record and from the conduct of counsel that the parties agreed that a court would defer determination of permanent alimony, property settlement, and related matters until after the entry of a final decree. Rodgers v. Rodgers, 137 Colo. 74 , 323 P.2d 892 (1958).
Although, resumption of marital relations by the parties to a divorce action affords good grounds for a dismissal thereof, it does not serve to divest the court of jurisdiction. Stockham v. Stockham, 145 Colo. 376 , 358 P.2d 1026 (1961).
Husband's motion to abate and reduce child support amounted to consent to the court's personal jurisdiction. In Re Booker, 833 P.2d 734 (Colo. 1992).
Purported father found to have transacted business in state. Purported father's sending of letter agreeing to pay support that father knew would be relied upon by Colorado authorities for purpose of determining eligibility for public assistance constituted transacting business in this state conferring personal jurisdiction over him pursuant to § 13-1-124 . In re Parental Responsibilities of H.Z.G., 77 P.3d 848 (Colo. App. 2003).
Decree of dissolution entered after a spouse's death is void for lack of jurisdiction, and the dissolution action is abated. In Re Connell, 870 P.2d 632 (Colo. App. 1994).
This section mandates that bifurcation of dissolution proceedings may occur only if the district court finds that "such a deferral is necessary in the best interest of the parties" and should only be considered in exceptional cases. Estate of Burford v. Burford, 935 P.2d 943 (Colo. 1997).
A decree of dissolution when entered by the district court is final to dissolve the marriage even when the district court refuses to certify the decree as a final judgment appealable under C.R.C.P. 54 (b). Estate of Burford v. Burford, 935 P.2d 943 (Colo. 1997).
14-10-106.5. Dissolution of civil unions - legal separation - jurisdiction - applicability of article and case law.
- Any person who enters into a civil union in Colorado pursuant to article 15 of this title consents to the jurisdiction of the courts of Colorado for the purpose of any action relating to a civil union even if one or both parties cease to reside in this state. In a matter seeking a dissolution, legal separation, or declaration of invalidity of a civil union, the court shall follow the procedures that are set forth in this article for dissolution, legal separation, or declaration of invalidity. The provisions of this article and any case law construing this article apply to the dissolution, legal separation, or declaration of invalidity of a civil union.
- The court shall follow the laws of Colorado in a matter filed in Colorado that is seeking a dissolution, legal separation, or invalidity of a civil union that was entered into in another jurisdiction.
Source: L. 2013: Entire section added, (SB 13-011), ch. 49, p. 163, § 14, effective May 1.
ANNOTATION
Law reviews. For article, "Maintenance Revisited The New Act", see 42 Colo. Law. 69 (Nov. 2013).
14-10-107. Commencement - pleadings - abolition of existing defenses - automatic, temporary injunction - enforcement.
- All proceedings under this article shall be commenced in the manner provided by the Colorado rules of civil procedure.
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The petition in a proceeding for dissolution of marriage or legal separation shall allege that the marriage is irretrievably broken and shall set forth:
- The residence of each party and the length of residence in this state;
- The date and place of the marriage;
- The date on which the parties separated;
- The names, ages, and addresses of any living children of the marriage and whether the wife is pregnant;
- Any arrangements as to the allocation of parental responsibilities with respect to the children of the marriage and support of the children and the maintenance of a spouse;
- The relief sought; and
- A written acknowledgment by the petitioner and the co-petitioner, if any, that he or she has received a copy of, has read, and understands the terms of the automatic temporary injunction required by paragraph (b) of subsection (4) of this section.
(2.5) Upon the filing of a petition for dissolution of marriage or legal separation pursuant to this article, each party shall provide to the court, in the manner prescribed by the court, his or her social security number and the social security number of each child named in the petition pursuant to paragraph (d) of subsection (2) of this section.
- Either or both parties to the marriage may initiate the proceeding. In addition, a legal guardian, with court approval pursuant to section 15-14-315.5, C.R.S., or a conservator, with court approval pursuant to section 15-14-425.5, C.R.S., may initiate the proceeding. If a legal guardian or conservator initiates the proceeding, the legal guardian or conservator shall receive notice in the same manner as the parties to the proceeding.
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- Upon the commencement of a proceeding by one of the parties, or by a legal guardian or conservator of one of the parties, the other party shall be personally served in the manner provided by the Colorado rules of civil procedure, and he or she may file a response in accordance with such rules; except that, upon motion verified by the oath of the party commencing the proceeding or of someone in his or her behalf for an order of publication stating the facts authorizing such service, and showing the efforts, if any, that have been made to obtain personal service within this state, and giving the address or last-known address of each person to be served or stating that his or her address and last-known address are unknown, the court shall hear the motion ex parte and, if satisfied that due diligence has been used to obtain personal service within this state or that efforts to obtain the same would have been to no avail, shall order one publication of a consolidated notice in a newspaper published or having general circulation in the county in which the proceeding is filed, notwithstanding the provisions of article 70 of title 24. A consolidated notice shall be published at least once during a calendar month and shall list the proceedings filed subsequent to those named in the previously published consolidated notice, stating as to each proceeding the names of the parties, the action number, the nature of the action, that a copy of the petition and summons may be obtained from the clerk of the court during regular business hours, and that default judgment may be entered against that party upon whom service is made by such notice if he or she fails to appear or file a response within thirty-five days after the date of publication. Costs of publication of a consolidated notice may be assessed pro rata to each of the proceedings named in the notice; except that, if a party is indigent or otherwise unable to pay such publication costs, the costs shall be paid by the court from funds appropriated for the purpose. Service shall be complete upon such publication, and a response or appearance by the party served by publication under this subsection (4) shall be made within thirty-five days thereafter, or default judgment may be entered. No later than the day of publication, the clerk of the court shall also post for thirty-five consecutive days a copy of the process on a bulletin board in his or her office or on the website of the district court in which the case was filed and shall mail a copy of the process to the other party at his or her last-known address, and shall place in the file of the proceeding his or her certificate of posting and mailing. Proof of publication of the consolidated notice shall be by placing in the file a copy of the affidavit of publication, certified by the clerk of the court to be a true and correct copy of the original affidavit on file in the clerk's office.
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Upon the filing of a petition for dissolution of marriage or legal separation by the petitioner or copetitioner or by a legal guardian or conservator on behalf of one of the parties and upon personal service of the petition and summons on the respondent or upon waiver and acceptance of service by the respondent, a temporary injunction shall be in effect against both parties until the final decree is entered or the petition is dismissed or until further order of the court:
- Restraining both parties from transferring, encumbering, concealing, or in any way disposing of, without the consent of the other party or an order of the court, any marital property, except in the usual course of business or for the necessities of life and requiring each party to notify the other party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the injunction is in effect;
- Enjoining both parties from molesting or disturbing the peace of the other party;
- Restraining both parties from removing the minor child or children of the parties, if any, from the state without the consent of the other party or an order of the court; and
- Restraining both parties, without at least fourteen days' advance notification and the written consent of the other party or an order of the court, from canceling, modifying, terminating, or allowing to lapse for nonpayment of premiums, any policy of health insurance, homeowner's or renter's insurance, or automobile insurance that provides coverage to either of the parties or the minor children or any policy of life insurance that names either of the parties or the minor children as a beneficiary.
- The provisions of the injunction shall be printed upon the summons and the petition and the injunction shall become an order of the court upon fulfillment of the requirements of subparagraph (I) of this paragraph (b). However, nothing in this paragraph (b) shall preclude either party from applying to the court for further temporary orders, an expanded temporary injunction, or modification or revocation under section 14-10-108.
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The summons shall contain the following advisements:
- That a request for genetic tests shall not prejudice the requesting party in matters concerning allocation of parental responsibilities pursuant to section 14-10-124 (1.5); and
- That, if genetic tests are not obtained prior to a legal establishment of paternity and submitted into evidence prior to the entry of the legal final decree of dissolution, the genetic tests may not be allowed into evidence at a later date.
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Upon the filing of a petition for dissolution of marriage or legal separation by the petitioner or copetitioner or by a legal guardian or conservator on behalf of one of the parties and upon personal service of the petition and summons on the respondent or upon waiver and acceptance of service by the respondent, a temporary injunction shall be in effect against both parties until the final decree is entered or the petition is dismissed or until further order of the court:
(4.1) With regard to the automatic, temporary injunction that becomes effective in accordance with paragraph (b) of subsection (4) of this section when a petition for dissolution of marriage or legal separation is filed and served, whenever there is exhibited by the respondent to any duly authorized peace officer as described in section 16-2.5-101, C.R.S., a copy of the petition and summons duly filed and issued pursuant to this section, or, in the case of the petitioner, a copy of the petition and summons duly filed and issued pursuant to this section, together with a certified copy of the affidavit of service of process or a certified copy of the waiver and acceptance of service, and the peace officer has cause to believe that a violation of that part of the automatic, temporary injunction which enjoins both parties from molesting the other party has occurred, such peace officer shall use every reasonable means to enforce that part of the injunction against the petitioner or respondent. A peace officer shall not be held civilly or criminally liable for his or her action pursuant to this subsection (4.1) if the action is in good faith and without malice.
- Defenses to divorce and legal separation existing prior to January 1, 1972, including but not limited to condonation, connivance, collusion, recrimination, insanity, and lapse of time, are hereby abolished.
- All issues raised by these proceedings shall be resolved by the court sitting without a jury.
Source: L. 71: R&RE, p. 521, § 1. C.R.S. 1963: § 46-1-7. L. 72: p. 296, § 1. L. 83: (4) amended, p. 641, § 1, effective July 1. L. 86: (4.1) added, p. 716, § 1, effective April 29. L. 87: (4.1) amended, p. 1578, § 21, effective July 10. L. 98: (2)(e) amended, p. 1395, § 35, effective February 1, 1999. L. 99: (2)(g) and (4)(b)(I)(D) added and (4)(b)(I)(B), (4)(b)(I)(C), and (4)(b)(II) amended, p. 1059, §§ 1, 2, effective June 1; (3), (4)(a), and IP(4)(b)(I) amended, p. 465, § 3, effective July 1. L. 2000: (3) amended, p. 1833, § 7, effective January 1, 2001. L. 2003: (4.1) amended, p. 1621, § 34, effective August 6. L. 2005: (4)(b)(III) added, p. 377, § 1, effective January 1, 2006. L. 2011: (2.5) added, (SB 11-123), ch. 46, p. 118, § 2, effective August 10. L. 2012: (4)(a) amended, (SB 12-175), ch. 208, p. 830, § 25, effective July 1. L. 2016: (4)(a) amended, (HB 16-1258), ch. 116, p. 329, § 1, effective April 21. L. 2017: (4)(a) amended, (HB 17-1142), ch. 66, p. 209, § 5, effective September 1.
ANNOTATION
Analysis
I. GENERAL CONSIDERATION.
Law reviews. For article, "Expediting Court Procedure", see 10 Dicta 113 (1933). For an article on divorce, see 16 Dicta 107 (1939). For article, "Comments on the Rules of Civil Procedure", see 22 Dicta 154 (1945). For article, "The Doctrine of Recrimination in Divorce Proceedings", see 21 Rocky Mt. L. Rev. 407 (1949). For article, "Forms Committee Presents Standard Pleading Samples to be Used in Divorce Litigation", see 29 Dicta 94 (1952). For article, "One Year Review of Criminal Law and Procedure", see 36 Dicta 34 (1959). For comment on Reed v. Reed, appearing below, see 31 Rocky Mt. L. Rev. 240 (1959). For article, "Legislative Update", see 12 Colo. Law. 1257 (1983). For article, "Recovering the Parentally Kidnapped Child", see 12 Colo. Law. 1798 (1983). For article, "Injunctive Remedies for Interpersonal Violence", see 18 Colo. Law. 1743 (1989). For article, "A Modest Proposal: The Rule 3(a) Waiver Agreement", see 46 Colo. Law. 23 (Mar. 2017). For article, "'Til Death Do Us Part", see 46 Colo. Law. 34 (July 2017).
Annotator's note. Cases relevant to § 14-10-107 decided prior to its earliest source, L. 71, p. 521 , § 1, have been included in the annotations to this section.
A court having properly acquired jurisdiction over the subject matter and parties to a divorce action, including minor children, is not at liberty to thereafter divest itself of such jurisdiction to the prejudice of interested parties. Cartier v. Cartier, 94 Colo. 157 , 28 P.2d 1010 (1934).
In divorce proceedings, the parties are the husband and wife, and the jurisdiction of the divorce court is exercised as between husband and wife. Ross v. Ross, 89 Colo. 536 , 5 P.2d 246 (1931).
There are, in reality, three parties to every divorce action: The plaintiff, the defendant, and the state. Reed v. Reed, 138 Colo. 74 , 329 P.2d 633 (1958).
A wife or husband may well be entitled to a divorce, but whether or not she or he will exercise that right is optional with her or him. Faith v. Faith, 128 Colo. 483 , 261 P.2d 225 (1953).
The policy of the court should be to discourage, rather than encourage, divorces. Faith v. Faith, 128 Colo. 483 , 261 P.2d 225 (1953).
When a plaintiff moves to dismiss a divorce action, it is the duty of a trial court to dismiss the case. McClanahan v. County Court, 136 Colo. 426 , 318 P.2d 599 (1957).
The court cannot compel one to take a divorce when he does not desire to have one. Faith v. Faith, 128 Colo. 483 , 261 P.2d 225 (1953).
Due process notice and hearing requirements met. The basic requirements of the due process clause of our constitution are that no person be deprived of valuable rights without adequate notice and opportunity for hearing, and the divorce statute does make provision for such notice and hearing before the termination of the marriage. In re Franks, 189 Colo. 499 , 542 P.2d 845 (1975).
Action for dissolution of marriage is proceeding in rem. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).
Scope of court's jurisdiction over nonresident respondent is established by this section. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).
Service by publication insufficient for jurisdiction in custody issue. Service by publication pursuant to the uniform act is not sufficient to vest a trial court with jurisdiction to resolve a custody issue. In re Blair, 42 Colo. App. 270, 592 P.2d 1354 (1979).
Default judgment would be proper after a member of the armed services entered an appearance and asserted cross claims. Federal Soldiers' and Sailors' Civil Relief Act is to protect members of the military from having default judgments entered against them without their notice of the pendency of the action. It does not prevent entry of such a judgment when there has been notice of the pendency of the action and the member has had adequate time to defend the action. In re Custody of Nugent, 955 P.2d 584 (Colo. App. 1997).
In an action for divorce it is sufficient compliance with the rules of civil procedure if a court makes findings on the material and ultimate facts. Lininger v. Lininger, 138 Colo. 338 , 333 P.2d 625 (1958).
Maintenance must be requested in petition. Under the uniform act, maintenance must be requested in the petition for dissolution. In re Boyd, 643 P.2d 804 (Colo. App. 1982).
All the provisions of the code which are applicable shall control in the trial and disposition of divorce cases, except as otherwise provided in the divorce act itself, either expressly or by necessary implication. Eickhoff v. Eickhoff, 27 Colo. 380, 61 P. 225 (1900); People ex rel. Lackey v. District Court, 30 Colo. 123, 69 P. 597 (1902).
The former defense of condonation was in the nature of confession and avoidance. Cochran v. Cochran, 164 Colo. 99 , 432 P.2d 752 (1967).
Condoned adultery was not a bar to a divorce, because it was not a ground for divorce. Jones v. Jones, 71 Colo. 420, 207 P. 596 (1922).
If there was any collusion or fraud between the parties, the court would see to it that a decree for divorce is not entered. Reed v. Reed, 138 Colo. 74 , 329 P.2d 633 (1958).
Where each party was at fault, a court could not grant relief to either party. Morgan v. Morgan, 139 Colo. 545 , 340 P.2d 1060 (1959).
Formerly, the defendant in an action for divorce could set up any matter by way of cross-complaint that would defeat the plaintiff's action. Cupples v. Cupples, 33 Colo. 449, 80 P. 1039 (1905).
It was not necessary, in order to entitle the defendant to set up matters by way of cross-complaint, in bar of the plaintiff's action, that the defendant was seeking a divorce. Cupples v. Cupples, 33 Colo. 449, 80 P. 1039 (1905).
Where a cross-complaint, defective because it omitted a jurisdictional averment so that no divorce could be awarded thereon to the defendant, must have been investigated, and could serve to defeat the action. Cupples v. Cupples, 33 Colo. 449, 80 P. 1039 (1905); Garver v. Garver, 52 Colo. 227, 121 P. 165 (1911).
Decedent's naming of her brother as the payable-on-death beneficiary of her accounts and joint accounts of her and her husband did not amount to an encumbrance of marital property. Estate of Westfall v. Westfall, 942 P.2d 1227 (Colo. App. 1996).
Changing accounts from multi-party to sole accounts before divorce did not affect the other spouse's rights since the accounts remained part of the marital estate and either party had a legal right to deplete the joint accounts. Estate of Westfall v. Westfall, 942 P.2d 1227 (Colo. App. 1996).
It was error to receive a verdict which failed to respond to counter charge of violation of marital duties pleaded in answer. Garver v. Garver, 52 Colo. 227, 121 P. 165 (1911).
II. COMMENCEMENT OF THE PROCEEDING.
Nothing in subsection (2) requires that a dissolution petitioner who seeks to pierce the corporate veil of an entity related to the respondent must set forth in the petition a veil-piercing claim in accordance with applicable pleading standards. In re Gromicko, 2017 CO 1, 387 P.3d 58.
Domicile in the state is alone sufficient to bring an absent defendant in a divorce action within the reach of the state's jurisdiction for purposes of a personal judgment by means of appropriate substituted service. In re Petition of Kraudel v. Benner, 148 Colo. 525 , 366 P.2d 667 (1961).
Its adequacy so far as due process is concerned is dependent on whether or not the form of substituted service provided for such cases and employed is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard, if it is, the traditional notions of fair play and substantial justice implicit in due process are satisfied. In re Petition of Kraudel v. Benner, 148 Colo. 525 , 366 P.2d 667 (1961).
Fraud relative to service by publication operates to void a divorce decree. In re Wilson, 653 P.2d 85 (Colo. App. 1982).
A decree of divorce based upon constructive service is void unless the record shows a strict compliance with all the statutory requirements. Roberts v. Roberts, 3 Colo. App. 6, 31 P. 941 (1892).
The record must show a compliance with the statute respecting the mailing of a copy of the summons to the defendant to justify the entry of a judgment. Roberts v. Roberts, 3 Colo. App. 6, 31 P. 941 (1892).
Parole proof that the defendant had actual knowledge of the pendency of the action was not considered on the hearing of his motion to set aside the judgment, because of the failure to mail him a copy of the summons, as required by law. Roberts v. Roberts, 3 Colo. App. 6, 31 P. 941 (1892).
Where upon a service of a summons in a divorce suit in which the defendant, if served within the county in which the action was pending, was required to appear and answer the complaint within 20 days thereafter, the court was not authorized to proceed to a judgment if defendant failed to comply with such command, for it was in direct conflict with the mandatory provision which gives a defendant 30 days to appear and answer in such circumstances. Mottschall v. Mottschall, 31 Colo. 260, 72 P. 1053 (1903).
Where plaintiff had removed her child to a foreign country, a motion by her attorney for leave to withdraw as her counsel was properly denied, since such withdrawal would make service of process impossible and deprive the trial court of authority to make proper orders. Holland v. Holland, 150 Colo. 442 , 373 P.2d 523 (1962).
Failure to allege 90-day residency immediately prior to proceeding not fatal. This section does not require that a petition for dissolution of marriage contain an allegation that the residency period includes the 90 days immediately prior to the commencement of the proceeding, and petitioner's failure to make her allegation in the words of § 14-10-106 was not a fatal defect. In re Alper, 33 Colo. App. 225, 517 P.2d 404 (1973).
Theory of mutual mistake not waived by failure to raise issue in reply to petition. In a dispute over a separation agreement, a theory of mutual mistake is not waived by failure to raise the issue in the reply to the petition for dissolution of marriage, since no reply is required and averments in a pleading to which no responsive pleading is required shall be taken as denied or avoided. In re Deines, 44 Colo. App. 98, 608 P.2d 375 (1980).
Withdrawal of marital property after dissolution proceeding commenced. In determining the total value of the marital property, trial court did not err in including the $45,000 husband, had withdrawn from the fund after the dissolution proceeding had commenced since husband, who had not obtained an order of the court or consent of his wife before using the money, failed to show that the withdrawal was done either in the usual course of business or was for the necessities of life. In re Meisner, 715 P.2d 1273 (Colo. App. 1985).
Trial court properly credited husband with the amount of funds existing prior to wife's sale of stock shares when wife cashed out shares after entry of the automatic temporary injunction. Wife's argument that the parties routinely cashed out shares to meet living expenses was rejected by the court as a rationale for not including the amount she cashed out in the division of marital shares, since the prior sales of stock took place inconsistently and was not used as income on a monthly basis. In re Huston, 967 P.2d 181 (Colo. App. 1998).
14-10-107.5. Entry of appearance and notice of withdrawal by delegate child support enforcement unit.
- The attorney for the delegate child support enforcement unit may file an entry of appearance on behalf of the county department of human or social services in any proceeding for dissolution of marriage or legal separation under this article 10 for purposes of establishing, modifying, and enforcing child support and medical support if any party is receiving child support services pursuant to section 26-13-106 and for purposes of establishing and enforcing reimbursement of payments for temporary assistance to needy families.
- The delegate child support enforcement unit, upon the filing of the entry of appearance described in subsection (1) of this section or upon the filing of a legal pleading to establish, modify, or enforce the support obligation, is from that date forward, without leave or order of court, a third-party intervenor in the action for the purposes outlined in subsection (1) of this section without the necessity of filing a motion to intervene.
- The delegate child support enforcement unit may withdraw as a party from a case when the case is closed without leave of the court by filing a notice pursuant to the Colorado rules of civil procedure. Upon the filing of such notice, the delegate child support enforcement unit is no longer considered a party to the action without the necessity of filing a motion to dismiss party.
Source: L. 89: Entire section added, p. 792, § 13, effective July 1. L. 90: Entire section amended, p. 889, § 8, effective July 1. L. 2007: (1) amended, p. 1648, § 1, effective May 31. L. 2018: Entire section amended, (SB 18-092), ch. 38, p. 400, § 12, effective August 8; entire section amended, (HB 18-1363), ch. 389, p. 2321, § 1, effective August 8.
Editor's note: This section was amended in SB 18-092. Those amendments were superseded by the amendment of this section in HB 18-1363, effective August 8, 2018.
Cross references: For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018.
14-10-107.7. Required notice of involvement with state department of human services.
When filing a petition for dissolution of marriage or legal separation, a petition in support or proceedings for the allocation of parental responsibilities with respect to the children of the marriage, or any other matter pursuant to this article 10 with the court, if the parties have joint legal responsibility for a child for whom the petition seeks an order of child support, the parties are required to indicate on a form prepared by the court whether or not the parties or the dependent children of the parties have received within the last five years or are currently receiving benefits or public assistance from either the state department of human services or county department of human or social services. If the parties indicate that they have received such benefits or assistance, the court shall inform the appropriate delegate child support enforcement unit so that the unit can determine whether any support enforcement services are required. There is no penalty for failure to report as specified in this section.
Source: L. 92: Entire section added, p. 202, § 8, effective August 1. L. 93: Entire section amended, p. 1558, § 6, effective September 1. L. 94: Entire section amended, p. 2644, § 106, effective July 1. L. 98: Entire section amended, p. 1396, § 36, effective February 1, 1999. L. 2018: Entire section amended, (SB 18-092), ch. 38, p. 400, § 13, effective August 8.
Cross references: For the legislative declaration contained in the 1994 act amending this section, see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018.
14-10-107.8. Required notice of prior restraining, civil protection, or emergency protection orders to prevent domestic abuse - petitions for dissolution of marriage or legal separation.
- When filing a petition for dissolution of marriage or legal separation pursuant to this article, the filing party shall have a duty to disclose to the court the existence of any prior temporary or permanent restraining orders and civil protection orders to prevent domestic abuse issued pursuant to article 14 of title 13, C.R.S., any mandatory restraining order and protection orders issued pursuant to section 18-1-1001, C.R.S., and any emergency protection orders issued pursuant to section 13-14-103, C.R.S., entered against either party by any court within two years prior to the filing of the petition of dissolution of marriage or legal separation. The disclosure required pursuant to this section shall address the subject matter of the previous restraining, civil protection, or emergency protection orders, including the case number and jurisdiction issuing such orders.
- After the filing of the petition, the court shall advise the parties concerning domestic violence services and potential financial resources that may be available and shall strongly encourage the parties to obtain such services for their children, in appropriate cases. If the parties' children participate in such services, the court shall apportion the costs of such services between the parties as it deems appropriate.
- The parties to a domestic relations petition filed pursuant to this article shall receive information concerning domestic violence services and potential financial resources that may be available.
Source: L. 95: Entire section added, p. 83, § 1, effective July 1. L. 99: Entire section amended, p. 502, § 9, effective July 1. L. 2001: Entire section amended, p. 978, § 1, effective August 8. L. 2004: (1) amended, p. 554, § 10, effective July 1. L. 2005: (1) amended, p. 764, § 22, effective June 1.
14-10-108. Temporary orders in a dissolution case.
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In a proceeding for dissolution of marriage, legal separation, the allocation of parental responsibilities, or declaration of invalidity of marriage or a proceeding for disposition of property, maintenance, or support following dissolution of the marriage, either party may move for temporary payment of debts, use of property, maintenance, parental responsibilities, support of a child of the marriage entitled to support, or payment of attorney fees. The motion may be supported by an affidavit setting forth the factual basis for the motion and the amounts requested.
(1.5) The court may consider the allocation of parental responsibilities in accordance with the best interests of the child, with particular reference to the factors specified in section 14-10-124 (1.5).
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As a part of a motion of such temporary orders or by an independent motion accompanied by an affidavit, either party may request the court to issue a temporary order:
- Restraining any party from transferring, encumbering, concealing, or in any way disposing of any property, except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the order is issued;
- Enjoining a party from molesting or disturbing the peace of the other party or of any child;
- Excluding a party from the family home or from the home of the other party upon a showing that physical or emotional harm would otherwise result.
- A party to an action filed pursuant to this article may seek, and the court may issue, a temporary or permanent protection order pursuant to the provisions of part 1 of article 14 of title 13, C.R.S.
- (Deleted by amendment, L. 2004, p. 553 , § 4, effective July 1, 2004.)
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A temporary order or temporary injunction:
- Does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;
- May be revoked or modified prior to final decree on a showing by affidavit of the facts necessary to revocation or modification of a final decree under section 14-10-122; and
- Terminates when the final decree is entered, unless continued by the court for good cause to a date certain, or when the petition for dissolution or legal separation is voluntarily dismissed.
- (Deleted by amendment, L. 2004, p. 553 , § 4, effective July 1, 2004.)
- At the time a protection order is requested pursuant to part 1 of article 14 of title 13, C.R.S., the court shall inquire about, and the requesting party and such party's attorney shall have an independent duty to disclose, knowledge such party and such party's attorney may have concerning the existence of any prior protection orders or restraining orders of any court addressing in whole or in part the subject matter of the requested protection order.
Source: L. 71: R&RE, p. 522, § 1. C.R.S. 1963: § 46-1-8. L. 73: pp. 553, 555, §§ 3, 12. L. 81: (6) added, p. 903, § 1, effective May 13. L. 83: (1) amended, p. 644, § 1, effective April 26; (1.5) added, p. 645, § 1, effective June 10. L. 87: (1.5) amended, p. 575, § 4, effective July 1. L. 94: (2.5) and (7) added and (3) amended, p. 2008, § 4, effective January 1, 1995. L. 98: (2.3) added and (3) amended, p. 245, § 4, effective April 13; (1) and (2.5) amended, p. 1396, § 37, effective February 1, 1999. L. 99: (2.3) amended, p. 501, § 4, effective July 1. L. 2000: (1.5) amended, p. 1844, § 24, effective August 2. L. 2003: (2.3), (2.5), (3), (6), and (7) amended, p. 1010, § 14, effective July 1. L. 2004: IP(2), (2.3), (2.5), (3), (4), (6), and (7) amended, p. 553, § 4, effective July 1. L. 2013: (3) and (7) amended, (HB 13-1259), ch. 218, p. 1016, § 17, effective July 1.
ANNOTATION
Analysis
I. GENERAL CONSIDERATION.
Law reviews. For article, "Legislative Update", see 12 Colo. Law. 1257 (1983).
Annotator's note. Since § 14-10-108 is similar to repealed § 46-1-5, C.R.S. 1963, § 46-1-5, CRS 53, CSA, C. 56, § 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
The general rule is that courts of equity should and will in a proper case enjoin a party to a divorce or separate maintenance action from proceeding in an annulment suit in a foreign jurisdiction. Hayutin v. Hayutin, 152 Colo. 261 , 381 P.2d 272 (1963).
Evidence of extreme circumstances necessitating sale of co-owned property. If there is evidence of extreme circumstances that co-owned property needs to be sold to preserve equities therein, a court may decree a sale of the property prior to a final determination of the merits of the dissolution action. In re Gavend, 781 P.2d 161 (Colo. App. 1989).
Permanent orders that substantially reduce the amount of parenting time originally specified in the temporary orders are not subject to the endangerment standard but rather the best interests of the child standard. In re Fickling, 100 P.3d 571 (Colo. App. 2004).
Best interest standard, and not the endangerment standard, was properly applied to award father residential care despite mother's award of temporary custody, where awarding father residential custody of the children was not abuse of discretion and record supported findings. In re Monteil, 960 P.2d 717 (Colo. App. 1998).
Applied in In re Westlake, 674 P.2d 1386 (Colo. App. 1983).
II. TEMPORARY ORDERS.
Law reviews. For article, "Attorney Fees at Temporary Orders: Reality or Illusion?", see 24 Colo. Law. 2185 (1995).
An order granting a temporary change of custody following an ex parte hearing with no notice to the mother denied her due process where no evidence was presented and no finding was made that irreparable injury would result if no order were issued until the time for responding had elapsed. Olson v. Priest, 193 Colo. 222 , 564 P.2d 122 (1977).
Court lost jurisdiction to enforce order. When an order dismissing a marriage dissolution action was signed, the court was divested of any further jurisdiction in that action and had no jurisdiction to hold husband in contempt for failing to pay support required by temporary order which was entered in that action. Hill v. District Court, 189 Colo. 356 , 540 P.2d 1079 (1975).
The purpose of temporary alimony is to allow a wife to live in her accustomed manner during pendency of the action and to provide her with means to properly litigate the controversy, and is not definitive of her entitlement to support under permanent orders. Bieler v. Bieler, 130 Colo. 17 , 272 P.2d 636 (1954); MacReynolds v. MacReynolds, 29 Colo. App. 267, 482 P.2d 407 (1971).
If she possesses independent means sufficient for these purposes the allowances should not be granted; however, she is not required first to impair the capital of her separate estate. Bieler v. Bieler, 130 Colo. 17 , 272 P.2d 636 (1954).
The allowance of temporary alimony is dependent upon the existence of the marriage relation, and all necessary facts to establish such relation must be made to appear at least prima facie before such allowance is made by the court, but where a prima facie case is established alimony should be awarded. Eickhoff v. Eickhoff, 29 Colo. 295, 68 P. 237 (1902).
In an action for divorce where it is clear upon the admitted facts that the marriage alleged in the complaint is void in law, or where the preponderance of the evidence tends to show that there was never a marriage in fact, temporary alimony should not be awarded, and if awarded will be set aside on review. Eickhoff v. Eickhoff, 29 Colo. 295, 68 P. 237 (1902).
It appears that in a divorce proceeding, the right to apply for alimony pendente lite is dependent upon the previous filing of a complaint for a divorce, and then the application may be made to, and acted upon, by the court in term time, or by the judge in vacation. Eickhoff v. Eickhoff, 14 Colo. App. 127, 59 P. 411 (1899).
The allowance to be made for temporary alimony, attorney fees, and suit money is within the sound discretion of the trial court, and unless that discretion has been abused the order of allowance will not be disturbed on review. Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902); Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).
In a divorce suit where the wife was in indigent circumstances and the husband was a man of large means, an allowance of $50 per month as temporary alimony, $250 attorney fees, and $25 suit money was not excessive, and was not an abuse of discretion by the trial court. Eickhoff v. Eickhoff, 29 Colo. 295, 68 P. 237 (1902).
In determining the amount of temporary alimony to be allowed, the ability of the husband is an element to be considered, and the same element must necessarily be taken into consideration in fixing the amount of permanent alimony. Fahey v. Fahey, 43 Colo. 354, 96 P. 251 (1908).
If the evidence as to the ability of the husband to pay temporary alimony in a divorce action is conflicting, the order of the trial court based thereon is not reviewable. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).
An award of temporary alimony may be modified by the supreme court. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).
No appeal from temporary orders that have terminated due to entry of permanent orders. In re Jaeger, 883 P.2d 577 (Colo. App. 1994).
Temporary alimony awarded a wife cannot be modified except upon motion and sufficient showing in support thereof; thus, where no motion was made respecting the alimony, it was an abuse of discretion for the court to suspend the order for temporary alimony at a hearing on a citation for the husband to show cause why he was not in contempt of court for failure to pay alimony Wright v. Wright, 122 Colo. 179 , 220 P.2d 881 (1950).
The question whether an order for temporary alimony should be modified is also within the discretion of the court. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).
Orders resolving child support issue are final. In dissolution proceedings, orders which resolve the issue of child support, even on a temporary basis, are final for purposes of review. In re Henne, 620 P.2d 62 (Colo. App. 1980).
"Final decree", as used in subsection (5)(c), is not limited to a final decree of dissolution, but may also include a final order concerning child support. In re Price, 727 P.2d 1073 ( Colo. 1986 ); In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev'd on other grounds, 974 P.2d 493 ( Colo. 1999 ).
Where court continued determination of permanent child support to time subsequent to entry of decree of dissolution, temporary child support order was not terminated on date of dissolution by virtue of statute terminating temporary order or temporary injunction when final decree is entered. In re Price, 727 P.2d 1073 (Colo. 1986).
Temporary orders as to maintenance are reviewable as a final judgment even if there has not been a final judgment in the form of a decree of dissolution. In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev'd on other grounds, 974 P.2d 493 ( Colo. 1999 ).
If the decree of dissolution leaves the issue of maintenance to be resolved later, an order of temporary maintenance is not terminated on the date of dissolution by virtue of subsection (5)(c). When possible, however, at the time the decree is entered, the court should set a definite date for consideration of permanent orders concerning maintenance. In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev'd on other grounds, 974 P.2d 493 ( Colo. 1999 ).
A request for a temporary award includes attorney fees and related litigation expenses. In re Mockelmann, 944 P.2d 670 (Colo. App. 1997).
An award of attorney fees is a final judgment subject to appellate review as it establishes a financial right and obligation of the parties until the entry of permanent orders. A temporary award of attorney fees is based upon the same underlying premise as a temporary award of maintenance or child support in that it concerns the immediate financial need of the party to whom the attorney fees are awarded. In re Mockelmann, 944 P.2d 670 (Colo. App. 1997).
The duty to pay maintenance is independent and is not limited or specifically tied to the entry of a decree of dissolution. To allow a party to terminate his or her maintenance payments when a decree of dissolution is entered that is mute on the issue of maintenance would disturb the status quo, frustrate a central purpose of the statute, and allow evasion of an important stabilizing aspect of the dissolution process. In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev'd on other grounds, 974 P.2d 493 ( Colo. 1999 ).
Where a husband, plaintiff in a divorce suit, is unable to make reasonable provision for his wife during the pendency of the suit, the suit should be abated until he is able to do so. Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902).
Where a wife, defendant in a divorce suit, is a nonresident of the state and desires to come to Colorado to defend the suit, she should be given an opportunity to do so and the plaintiff should be required to deposit in court a sufficient sum to pay to the state the expenses of the wife which shall be paid to her upon her arrival, within a reasonable time, with such additional sum as may be necessary to properly defend the suit. Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902).
Where a trial court denies motions of both parties with respect to temporary alimony pending trial on the merits, a writ of error to review such action is premature. Hizel v. Hizel, 132 Colo. 379 , 288 P.2d 354 (1955).
Since temporary orders are not in any way res judicata as to matters properly the subject of permanent order, a showing of change of circumstances is not an essential element for the trial court's consideration in its establishment of permanent alimony. MacReynolds v. MacReynolds, 29 Colo. App. 267, 482 P.2d 407 (1971).
Temporary orders do not grant "parenting time rights", as that term is specified in § 14-10-129 (1)(b)(I), but simply provide for parenting time pending a final determination of permanent orders. In re Fickling, 100 P.3d 571 (Colo. App. 2004).
Temporary orders are not determinative of the permanent orders regarding allocation of parental responsibility or other matters. In re Lawson, 608 P.2d 378 (Colo. App. 1980); In re Fickling, 100 P.3d 571 (Colo. App. 2004).
There is no enforceable temporary order where the claim for spousal maintenance is based on a referee's recommendation and where the transcript is not signed and no separate order of the court is entered. In re Burke, 680 P.2d 1338 (Colo. App. 1984).
Formerly, an execution was authorized on an order for temporary alimony. Daniels v. Daniels, 9 Colo. 133, 10 P. 657 (1886); Paul v. Marty, 72 Colo. 399, 211 P. 667 (1922).
The temporary order of the "Beth Din", or its adoption in a prior proceeding for legal separation that was later dismissed, has no legal effect in a subsequent proceeding for dissolution of marriage between the same parties. In re Popack, 998 P.2d 464 (Colo. App. 2000).
Applying the intent of the Indian Child Welfare Act of 1978, court determined that trial court improperly found that mother had abandoned child for the purpose of granting a temporary allocation of parental responsibilities to caregiver. Although mother had signed document granting caregiver guardianship, the document did not suggest the placement was to be permanent, and the mother remained in continued contact with child. A parent's placement of a child in the care of another, even if prolonged, does not constitute abandonment if the parent remains in contact and demonstrates an intent to maintain the relationship. In re S.M.J.C., 262 P.3d 955 (Colo. App. 2011).
III. TEMPORARY INJUNCTIONS.
Restraining orders should not be issued in divorce actions except in circumstances of actual emergency, and where it is clearly established that grounds exist for granting such extraordinary remedy. Simpson v. Simpson, 151 Colo. 88 , 376 P.2d 55 (1962).
It is an unusual situation in which an order on one spouse to refrain from transferring property is inadequate to afford needed protection to the other who seeks to maintain the status quo pending a hearing on notice. Simpson v. Simpson, 151 Colo. 88 , 376 P.2d 55 (1962).
The right of the husband in a divorce action to manage his property and carry on his business in due course is fundamental and should not be interfered with or suspended by the issuance of ex parte restraining orders without notice upon persons with whom he transacts business, except upon a clear showing of emergency and a need therefor. Simpson v. Simpson, 151 Colo. 88 , 376 P.2d 55 (1962).
The practice of bringing in third parties as defendants in a divorce action and issuing restraining orders against them without notice is not to be encouraged, it being only under extraordinary circumstances that such persons engaged in legitimate business transactions with one of the parties to the divorce action and not involved in their marital difficulties may be restrained or enjoined from continuing business activities with one of the spouses involved. Simpson v. Simpson, 151 Colo. 88 , 376 P.2d 55 (1962).
Any reasons justifying permanent injunctive relief in dissolution of marriage proceeding must arise from factors independent of those with which the trial court is empowered to deal in a dissolution proceeding. In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980).
14-10-109. Enforcement of protection orders.
The duties of peace officers enforcing orders issued pursuant to section 14-10-107 or 14-10-108 shall be in accordance with section 18-6-803.5, C.R.S., and any rules adopted by the Colorado supreme court pursuant to said section.
Source: L. 71: R&RE, p. 523, § 1. C.R.S. 1963: § 46-1-9. L. 92: Entire section amended, p. 176, § 2, effective July 1. L. 94: Entire section amended, p. 2009, § 5, effective January 1, 1995.
Cross references: For civil contempt, see C.R.C.P. 107.
14-10-110. Irretrievable breakdown.
- If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken or one of the parties has so stated and the other has not denied it, there is a presumption of such fact, and, unless controverted by evidence, the court shall, after hearing, make a finding that the marriage is irretrievably broken.
-
If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation, and shall:
- Make a finding whether the marriage is irretrievably broken; or
- Continue the matter for further hearing not less than thirty-five days nor more than sixty-three days later, or as soon thereafter as the matter may be reached on the court's calendar, and may suggest to the parties that they seek counseling. At the adjourned hearing, the court shall make a finding whether the marriage is irretrievably broken.
Source: L. 71: R&RE, p. 523, § 1. C.R.S. 1963: § 46-1-10. L. 2012: (2)(b) amended, (SB 12-175), ch. 208, p. 831, § 26, effective July 1.
Cross references: For marriage counseling, see article 12 of this title 14.
ANNOTATION
Law reviews. For article, "Is Residence of the Plaintiff, in Colorado, Necessary to Support a Divorce Action Based on Cruelty Within the State, If Defendant Is a Resident of Colorado?", see 24 Dicta 110 (1947). For article, "When the State Had an Interest in Marriage: Colorado's Divorce Acts, 1861-1917", see 16 Colo. Law. 1627 (1987).
Annotator's note. Some of the cases appearing under § 14-10-110 were decided under repealed § 46-1-1, C.R.S. 1963, § 46-1-1, CRS 53, CSA, C. 56, § 1, and laws antecedent thereto, which specifically enumerated the grounds for divorce.
Marriage is a contract between the parties, but it is distinguishable from the ordinary civil contract. In re Franks, 189 Colo. 499 , 542 P.2d 845 (1975).
Marriage is the subject of a more immediate interest to the state than is the ordinary contract. In re Franks, 189 Colo. 499 , 542 P.2d 845 (1975).
Marriage is not a "contract" within the meaning of the contract clause of the constitution. In re Franks, 189 Colo. 499 , 542 P.2d 845 (1975).
General assembly control of marriage is constitutional. Since marriage is not a contract within the meaning of the constitutional contract clause, the general assembly has broad control over it, the reasonable exercise of which will not run afoul of the constitutional protection of contracts. In re Franks, 189 Colo. 499 , 542 P.2d 845 (1975).
In attempting to increase availability of divorces to estranged spouses, the general assembly recognized that public policy does not encourage keeping two people together once the legitimate objects of matrimony have ceased to exist. In re Franks, 189 Colo. 499 , 542 P.2d 845 (1975).
Decree not automatic. Although the dissolution of marriage statute was intended as a "no-fault" divorce act, the actual granting of the decree is not automatic or perfunctory under all circumstances. In re Franks, 189 Colo. 499 , 542 P.2d 845 (1975).
Court's discretion to continue case sufficient safeguard against hastiness. The general assembly declined to include in the Colorado act, which is modeled on the uniform dissolution of marriage act, the language of the uniform act allowing the court to order a conciliation conference, and thus, in effect, determined that vesting discretion in the court to continue the case from 30 to 60 days was sufficient safeguard against hasty and insensate decisions. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).
"Irretrievable" breakdown is no more vague or incapable of definition than "became impotent through immoral conduct", has been "extremely and repeatedly cruel", or being an "habitual drunkard", all of which constituted, under the prior Colorado statute, grounds for divorce. In re Franks, 189 Colo. 499 , 542 P.2d 845 (1975).
A finding of irretrievable breakdown is one of fact and, where the allegation of the petition is denied, it must be proven as any other essential element of the cause of action. In re Franks, 189 Colo. 499 , 542 P.2d 845 (1975).
Where the parties do not agree as to the breakdown of the marriage, it is imperative for the court to weigh all the evidence and make its own independent determination of that fact. In re Franks, 189 Colo. 499 , 542 P.2d 845 (1975).
The issue of whether a marriage has been irretrievably broken is a question of fact to be resolved upon consideration of the facts and circumstances of each case, and the factors underlying that determination will necessarily vary from case to case. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).
Finding of irretrievable breakdown must be proved when denied. While the dissolution of marriage act did eliminate all the former defenses to divorce in this state, it did not eliminate the necessity of proving an irretrievable breakdown where that basic allegation is denied in the pleadings. In re Franks, 189 Colo. 499 , 542 P.2d 845 (1975).
No requirement that valid goals of marriage must be unattainable. There is no requirement that for the marriage to be beyond redemption, substantial proportion of legitimate objectives of a marriage must be no longer attainable by the parties. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).
Elucidating valid goals of marriage which must be either lost or beyond accomplishment before the marriage can be classified as irretrievably broken would constitute an amendment to the act, and that power is reserved exclusively for the general assembly. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).
The parentage of a child is not an issue in a divorce or annulment action between the parents. Devereaux v. Devereaux, 144 Colo. 31 , 354 P.2d 1015 (1960).
Formerly, before a court could enter its findings in favor of a defendant, it must have necessarily found that the defendant had not been guilty of a violation of the marriage contract. Schleiger v. Schleiger, 137 Colo. 279 , 324 P.2d 370 (1958).
In a divorce action where a defendant pleaded grounds for divorce by way of counterclaim, the issue was the guilt or innocence of the parties on the grounds alleged against each other, and findings by a trial court that plaintiff was entitled to a divorce was necessarily a finding against the defendant on the issues. Schleiger v. Schleiger, 137 Colo. 279 324 P.2d 370 (1958).
Formerly, the grounds for divorce in this state were purely statutory. Pleyte v. Pleyte, 1 Colo. App. 70, 28 P. 23 (1891); Redington v. Redington, 2 Colo. App. 8, 29 P. 811 (1892); Githens v. Githens, 78 Colo. 102, 239 P. 1023 (1925).
For the former ground for divorce, adultery, see Redington v. Redington, 2 Colo. App. 8, 29 P. 811 (1892); Harding v. Harding, 36 Colo. 106, 85 P. 423 (1906); Jones v. Jones, 71 Colo. 420, 207 P. 596 (1922).
For the former ground for divorce, desertion, see Stein v. Stein, 5 Colo. 55 (1879); Calvert v. Calvert, 15 Colo. 390 , 24 P. 1043 (1890); Johnson v. Johnson, 22 Colo. 20 , 43 P. 130, 55 Am. St. R. 113 (1895); Hobbs v. Hobbs, 72 Colo. 190 , 210 P. 398 (1922); Oates v. Oates, 72 Colo. 195 , 210 P. 325 (1922); Mulhollen v. Mulhollen, 145 Colo. 479 , 358 P.2d 887 (1961).
For the former ground for divorce, cruelty, see Sylvis v. Sylvis, 11 Colo. 319 , 17 P. 912 (1888); Gilpin v. Gilpin, 12 Colo. 504 , 21 P. 612 (1889); Williams v. Williams, 1 Colo. App. 281, 28 P. 726 (1892); Geisseman v. Geisseman, 34 Colo. 481 , 83 P. 635 (1905); Harding v. Harding, 36 Colo. 106 , 85 P. 423 (1906); Sedgwick v. Sedgwick, 50 Colo. 164 , 114 P. 488 (1911); Shaff v. Shaff, 72 Colo. 184 , 210 P. 400 (1922); Miller v. Miller, 90 Colo. 428 , 9 P.2d 616 (1932); Hilburger v. Hilburger, 110 Colo. 409 , 135 P.2d 138 (1943); Harms v. Harms, 120 Colo. 212 , 209 P.2d 552 (1949); Mentzer v. Mentzer, 120 Colo. 412 , 209 P.2d 920 (1949); Carroll v. Carroll, 135 Colo. 379 , 311 P.2d 709 (1957); Schleiger v. Schleiger, 137 Colo. 279 , 324 P.2d 370 (1958); Reed v. Reed, 138 Colo. 74 , 329 P.2d 633 (1958); Lininger v. Lininger, 138 Colo. 338 , 333 P.2d 625 (1958); Poos v. Poos, 145 Colo. 334 , 359 P.2d 3 (1961); Harvey v. Harvey, 150 Colo. 449 , 373 P.2d 304 (1962); Cochran v. Cochran, 164 Colo. 99 , 432 P.2d 752 (1967); Moats v. Moats, 168 Colo. 120 , 450 P.2d 64 (1969).
For the former ground for divorce, nonsupport by the husband, see Rogers v. Rogers, 57 Colo. 132, 140 P. 193 (1914).
Applied in In re Erickson, 43 Colo. App. 319, 602 P.2d 909 (1979); In re Lester, 647 P.2d 688 (Colo. App. 1982).
14-10-111. Declaration of invalidity.
-
The district court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:
- A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances.
- A party lacked the physical capacity to consummate the marriage by sexual intercourse, and the other party did not at the time the marriage was solemnized know of the incapacity.
- A party was under the age as provided by law and did not have the consent of his parents or guardian or judicial approval as provided by law.
- One party entered into the marriage in reliance upon a fraudulent act or representation of the other party, which fraudulent act or representation goes to the essence of the marriage.
- One or both parties entered into the marriage under duress exercised by the other party or a third party, whether or not such other party knew of such exercise of duress.
- One or both parties entered into the marriage as a jest or dare.
-
The marriage is prohibited by law, including the following:
- A marriage entered into prior to the dissolution of an earlier marriage of one of the parties;
- A marriage between an ancestor and a descendant or between a brother and a sister, whether the relationship is by the half or the whole blood;
- A marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs of aboriginal cultures;
- A marriage which was void by the law of the place where such marriage was contracted.
-
A declaration of invalidity under subsection (1) of this section may be sought by any of the following persons and shall be commenced within the times specified, but in no event may a declaration of invalidity be sought after the death of either party to the marriage, except as provided in subsection (3) of this section:
- For the reasons set forth in either subsection (1)(a), (1)(d), (1)(e), or (1)(f) of this section, by either party to the marriage who was aggrieved by the conditions or by the legal representative of the party who lacked capacity to consent no later than six months after the petitioner obtained knowledge of the described condition;
- For the reason set forth in subsection (1)(b) of this section, by either party no later than one year after the petitioner obtained knowledge of the described condition;
- For the reason set forth in subsection (1)(c) of this section, by the underage party, his parent, or his guardian, if such action for declaration of invalidity of marriage is commenced within twenty-four months of the date the marriage was entered into.
- A declaration of invalidity, for the reason set forth in subsection (1)(g) of this section, may be sought by either party; by the legal spouse in case of bigamous, polygamous, or incestuous marriages; by the appropriate state official; or by a child of either party at any time prior to the death of either party or prior to the final settlement of the estate of either party and the discharge of the personal representative, executor, or administrator of the estate or prior to six months after an estate is closed under section 15-12-1204, C.R.S.
- Repealed.
- Marriages declared invalid under this section shall be so declared as of the date of the marriage.
- The provisions of this article relating to the property rights of spouses, maintenance, and support of and the allocation of parental responsibilities with respect to the children on dissolution of marriage are applicable to decrees of invalidity of marriage.
- No decree shall be entered unless one of the parties has been domiciled in this state for thirty days next preceding the commencement of the proceeding or unless the marriage has been contracted in this state.
Source: L. 71: R&RE, p. 523, § 1. C.R.S. 1963: § 46-1-11. L. 73: pp. 553, 1647, §§ 4, 5, 6. L. 80: (1)(g)(II) amended, p. 794, § 47, effective June 5. L. 98: (6) amended, p. 1397, § 38, effective February 1, 1999. L. 2018: (4) repealed, (SB 18-095), ch. 96, p. 754, § 8, effective August 8.
Cross references: (1) For the effect of a declaration of invalidity on marital agreements, see § 14-2-308.
(2) For the legislative declaration in SB 18-095, see section 1 of chapter 96, Session Laws of Colorado 2018.
ANNOTATION
Analysis
- I. General Consideration.
- II. The Invalidity of Marriage Proceeding.
- III. Mental Incapacity to Consent to Marriage.
- IV. Legitimacy of Children.
- V. Conflict of Laws.
I. GENERAL CONSIDERATION.
Law reviews. For article, "Ten Years of Domestic Relations in Colorado -- 1940-1950", see 27 Dicta 399 (1950). For note, "The Presumption of Death and a Second Marriage", see 27 Dicta 414 (1950). For article, "A Decade of Colorado Law: Conflict of Laws, Security, Contracts and Equity", see 23 Rocky Mt. L. Rev. 247 (1951). For note, "Jurisdiction to Annul a Marriage Celebrated Without the Forum", see 26 Rocky Mt. L. Rev. 57 (1953). For article, "One Year Review of Domestic Relations", see 35 Dicta 36 (1958). For article, "Choice of the Applicable Law in Colorado", see 35 Dicta 162 (1958). For article, "One Year Review of Domestic Relations", see 39 Dicta 102 (1962). For article, "The Incestuous Marriage -- Relic of the Past", see 36 U. Colo. L. Rev. 473 (1964). For article, "Due Process in Involuntary Civil Commitment and Incompetency Adjudication Proceedings: Where Does Colorado Stand?", see 46 Den. L.J. 516 (1969). For article, "Marriage, Divorce, and Annulment When One Party is Arguably Incapacitated", see 43 Colo. Law. 39 (Feb. 2014).
Annotator's note. Since § 14-10-111 is similar to repealed § 46-3-1 et seq., CRS 53, and CSA, C. 56, §§ 33 through 38, relevant cases construing those provisions have been included in the annotations to this section.
There is a wide distinction between a conventional annulment proceeding and a conventional action for divorce. An annulment proceeding is one in which the validity of a marriage is challenged from its inception on the ground that one or both of the parties was underage, on the ground that one or both of the parties was married to another person, on the ground that the proceeding was attended by fraud, or on some other fairly comparable ground. An action for divorce is one in which termination is sought of a valid marriage. Gainey v. Fleming, 279 F.2d 56 (10th Cir. 1960).
For the effect of an invalidity of marriage determination on maintenance payments which were terminated upon remarriage, see Torgan v. Torgan, 159 Colo. 93 , 410 P.2d 167 (1966).
Reestablishment of a support obligation following annulment of a subsequent marriage must be decided on a case-by-case basis, taking into account the facts and equities of the particular case. In re Cargill and Rollins, 843 P.2d 1335 (Colo. 1993).
The children of the deceased had no standing to challenge the validity of his marriage when it was not prohibited. Matter of Estate of Fuller, 862 P.2d 1037 (Colo. App. 1993).
Where wife fraudulently induced husband into marriage, an award of property and maintenance to the wife would be inequitable and unjust. Wife married husband to obtain a green card and left him immediately following receipt of her permanent green card. In re Joel, 2012 COA 128 , 404 P.3d 1251.
Although subsection (6) states that the provisions of the Uniform Dissolution of Marriage Act (UDMA) relating to property, support, and allocation of parental responsibilities apply to invalidity actions, the purpose of that subsection is to protect innocent participants in meretricious relationships and the children of those relationships, not to reward the party perpetrating the void marriage. In re Joel, 2012 COA 128 , 404 P.3d 1251.
In dividing property and awarding maintenance, the court's equitable powers require the court to award property and maintenance as the court deems equitable and just. An award to wife of a portion of husband's retirement account, to which husband was the sole contributor, would be inequitable in light of the wife's fraud. In re Joel, 2012 COA 128 , 404 P.3d 1251.
The parties' car is properly valued as of the date of the decree of invalidity and not the date of permanent orders as wife contends. In re Joel, 2012 COA 128 , 404 P.3d 1251.
Applied in In re Heinzman, 198 Colo. 36 , 596 P.2d 61 (1979).
II. THE INVALIDITY OF MARRIAGE PROCEEDING.
Originally, authority to grant divorces and annul marriages in England was vested solely in the ecclesiastical courts. This authority terminated around 1870, during the reign of Victoria, at which time a special court was created to hear and decide all divorces and annulments of marriage, but ecclesiastical courts and their authority never became a part of American common law. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
An annulment action is a statutory proceeding in which the court exercises equity powers. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
The severance of marital ties, the entry of custodial orders regarding children, the application of equitable principles in divorce and annulment actions, and so forth, are or have aspects of the conventional activities of a court of equity. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
This article provides that in suits for annulment the practice and proceedings shall be in accordance with the rules of civil procedure. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
In the interplay of this section and the rules of civil procedure, there is no trial by jury of an annulment suit as a matter of right. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
A cursory reading of C.R.C.P. 38(a) makes obvious the conclusion that an annulment suit does not come within the meaning of any of the enumerated actions requiring trial by jury unless waived. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
But C.R.C.P. 39(c) provides that in actions not triable by a jury, the court may upon motion or of its own initiative try any issue with an advisory jury, or when statute provides for trial without a jury, the court with the consent of both parties may order a jury trial. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
Proof in an annulment case must be clear and convincing, and the court should so instruct the jury, and the preponderance rule is inapplicable. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
The giving of confusing and incompatible instructions in an annulment action is fatal error. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
III. MENTAL INCAPACITY TO CONSENT TO MARRIAGE.
Marriages are not easily annulled, and consequently, there must be clear and convincing proof that such party was mentally incompetent at the time the marriage was entered into. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
An instruction "that the husband would be incapable of giving voluntary consent if you find that at the time of the marriage ceremony he did not have sufficient mental capacity to understand the nature, obligations, and responsibilities of a marriage contract, and to appreciate the solemnity of the marriage vows" goes beyond the statutory ground for annulment which provides that if "one or both parties were mentally incapable of giving voluntary consent to the marriage", the marriage may be set aside. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
In an action for annulment of a marriage on the ground of mental incapacity, testimony of a witness to marriage ceremony that she observed plaintiff before, during, and after ceremony, conversed with him, and that in her opinion he was mentally competent, was erroneously rejected, the credibility of such witness being for the jury. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
Testimony of a psychiatrist who based his opinion on the incompetency of plaintiff, and in part upon the testimony of another witness, was erroneously admitted. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
An order of adjudication of mental incompetency was properly admitted. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
Evidence of forgery of a blood test certificate was immaterial and inadmissible, as not tending to prove any of the alleged grounds of annulment. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
Evidence that wife had applied for driver's license and signed a delinquency tax statement in former name, subsequent to the alleged marriage, were remote circumstances having no legitimate bearing on the issues and should have been rejected. Young v. Colo. Nat'l Bank, 148 Colo. 104 , 365 P.2d 701 (1961).
IV. LEGITIMACY OF CHILDREN.
A judgment and decree annulling the marriage of the parents does not determine the parentage of a child conceived prior to the marriage, and is not res judicata in a dependency proceeding to determine the paternity of the child. Devereaux v. Devereaux, 144 Colo. 31 , 354 P.2d 1015 (1960).
The parentage of a child is not an issue in an annulment action between the parents. Devereaux v. Devereaux, 144 Colo. 31 , 354 P.2d 1015 (1960).
Subsection (4) refers only to cases where an annulment proceeding is brought. Valdez v. Shaw, 100 Colo. 101 , 66 P.2d 325 (1937); Gainey v. Fleming, 279 F.2d 56 (10th Cir. 1960).
V. CONFLICT OF LAWS.
Marriages being lawful in other states are recognized as lawful and valid in the state of Colorado. Spencer v. People in Interest of Spencer, 133 Colo. 196 , 292 P.2d 971 (1956).
It is the public policy of this state concerning foreign marriages that such marriages are valid if valid where performed. Spencer v. People in Interest of Spencer, 133 Colo. 196 , 292 P.2d 971 (1956).
In an action for annulment, the marriage is held to be valid or void, according to the statutes in force and effect in the jurisdiction where the same was entered into, and if, according to these statutes, it is found to be valid, it must be so considered in this jurisdiction. Payne v. Payne, 121 Colo. 212 , 214 P.2d 495 (1950).
Annulment issued in a foreign jurisdiction does not prevent Colorado courts from entering orders as to property and maintenance. In re Dickson, 983 P.2d 44 (Colo. App. 1998).
14-10-112. Separation agreement.
- To promote the amicable settlement of disputes between the parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the allocation of parental responsibilities, support, and parenting time of their children.
- In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except terms providing for the allocation of parental responsibilities, support, and parenting time of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.
- If the court finds the separation agreement unconscionable, the court may request the parties to submit a revised separation agreement, or the court may make orders for the disposition of property, support, and maintenance.
-
If the court finds that the separation agreement is not unconscionable as to support, maintenance, and property:
- Unless the separation agreement provides to the contrary, its terms shall be set forth in the decree of dissolution or legal separation, and the parties shall be ordered to perform them; or
- If the separation agreement provides that its terms shall not be set forth in the decree, the decree shall identify the separation agreement and shall state that the court has found the terms not unconscionable.
- Terms of the agreement set forth in the decree may be enforced by all remedies available for the enforcement of a judgment, including contempt, but are no longer enforceable as contract terms.
- Except for terms concerning the support, the allocation of decision-making responsibility, or parenting time of children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides.
Source: L. 71: R&RE, p. 525, § 1. C.R.S. 1963: § 46-1-12. L. 93: (1), (2), and (6) amended, p. 576, § 6, effective July 1. L. 98: (1), (2), and (6) amended, p. 1397, § 39, effective February 1, 1999.
Cross references: (1) For the "Uniform Premarital and Marital Agreements Act", see part 3 of article 2 of this title 14.
(2) For the legislative declaration contained in the 1993 act amending subsections (1), (2), and (6), see section 1 of chapter 165, Session Laws of Colorado 1993.
ANNOTATION
Analysis
- I. General Consideration.
- II. Antenuptial Agreements.
- III. Unconscionable Agreements.
- IV. Incorporation of Agreement into Decree.
- V. Modification.
- VI. Enforcement.
I. GENERAL CONSIDERATION.
Law reviews. For note, "Incorporation by Reference of Agreements Made by the Parties in Divorce Decrees", see 21 Rocky Mt. L. Rev. 420 (1949). For note, "The Paradoxical Separation Agreement", see 21 Rocky Mt. L. Rev. 434 (1949). For comment on Irwin v. Irwin, appearing below, see 35 U. Colo. L. Rev. 440 (1963). For note, "Effects of Reconciliation on Separation Agreements in Colorado", see 51 U. Colo. L. Rev. 399 (1980). For article, "Pre-Nuptial Agreements Revisited", see 11 Colo. Law. 1882 (1982). For article, "Mediation and the Colorado Lawyer", see 11 Colo. Law. 2315 (1982). For article, "Dischargeability of Dissolution Debts under the Bankruptcy Code", see 13 Colo. Law. 814 (1984). For article, "Domestic Case Update", see 14 Colo. Law. 209 (1985). For article, "Seeking Change in Separation Agreement", see 15 Colo. Law. 806 (1986). For article, "Cohabitation Agreements in Colorado", see 15 Colo. Law. 979 (1986). For article, "Common Law Marriage in Colorado", see 15 Colo. Law. 252 (1987). For article, "Postsecondary Education Expenses after Chalat: Paying College Expenses after Divorce", see 38 Colo. Law. 19 (Jan. 2009).
Annotator's note. Although § 14-10-112 enacted in 1971 has no similar provision in previous codes and laws of Colorado, relevant cases decided under repealed §§ 46-1-1 through 46-1-11, C.R.S. 1963, §§ 46-1-1 through 46-1-15, CRS 53, CSA, C. 56, §§ 1 through 32, and laws antecedent thereto have been included in the annotations to this section. (But see In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975), concerning the precedential value of such cases.)
Purpose of the separation agreement is to enable divorcing parties to reach an amicable out-of-court settlement of their claims to the property of the other. In re Manzo, 659 P.2d 669 (Colo. 1983).
This section does not preclude a stipulated oral separation agreement; the issue is whether the parties intend to be bound by the terms of an agreement, whether oral or written. In re Chambers, 657 P.2d 458 (Colo. App. 1982).
It has been established that a husband and wife may enter into contracts which settle their differences, and the trial court, while determining division of property accumulated during the marriage, cannot disregard such a contract where it is free from fraud, collusion, compulsion, or unconscionability. Magarrell v. Magarrell, 144 Colo. 228 , 355 P.2d 946 (1960); Irwin v. Irwin, 150 Colo. 261 , 372 P.2d 440 (1962); Jekot v. Jekot, 32 Colo. App. 118, 507 P.2d 473 (1973).
While courts generally adopt stipulations between the parties, relating to alimony, they are not bound to do so. Hobbs v. Hobbs, 72 Colo. 190, 210 P. 398 (1922).
The agreement must be in all respects fair, reasonable, and just, and it must make sufficient provision for the maintenance of the wife according to the status of the parties. Daniels v. Daniels, 9 Colo. 133, 10 P. 657 (1886); Hobbs v. Hobbs, 72 Colo. 190, 210 P. 398 (1922).
In agreements of this nature it must be made to appear that the husband has dealt fairly and equitable with his wife in the transaction. Hill v. Hill, 70 Colo. 47, 197 P. 236 (1921); Hobbs v. Hobbs, 72 Colo. 190, 210 P. 398 (1922).
Parents may not by agreement divest the court of continuing jurisdiction over the custodial rights and duties of maintenance of children during their minority. Irwin v. Irwin, 150 Colo. 261 , 372 P.2d 440 (1962).
Legal or equitable lien not created by decree. Language of dissolution decree which awarded the house to husband and his mother and ordered husband to execute a promissory note in favor of wife to become due upon the occurrence of one of several possible events did not create a legal or equitable lien on the property in favor of wife where the court did not impose any duty on the husband to pay the note from the proceeds resulting from the sale of the property and did not order the husband to execute a deed of trust or other security instrument to secure payment of the note. Leyden v. Citicorp Indus. Bank, 762 P.2d 689 (Colo. App. 1988).
Applied in Lowery v. Lowery, 195 Colo. 86 , 575 P.2d 430 (1978); In re Stedman, 632 P.2d 1048 (Colo. App. 1981).
II. ANTENUPTIAL AGREEMENTS.
Precedential value of prior decisions. In interpreting the current statute, the courts do not consider that the decisions on separation agreements incorporated in decrees in actions arising under the 1917 act (CRS 53, § 46-1-5) have any precedential value. In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).
This section is explicitly limited to separation agreements; antenuptial agreements cannot be challenged as unconscionable under this section. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979); In re Newman v. Newman, 653 P.2d 728 ( Colo. 1982 ).
Separation agreements and antenuptial agreements are separate and distinct legal documents. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev'd on other grounds, 653 P.2d 728 ( Colo. 1982 ).
While separation agreements contemplate disposition of property interests which mature because of the marriage status, prenuptial agreements fix the property rights of the parties, regardless of the duration of the marriage. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979); In re Lemoine-Hofmann, 827 P.2d 587 (Colo. App. 1992).
Spouses-to-be have right to enter into antenuptial agreements which contemplate the possibility of dissolution. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev'd on other grounds, 653 P.2d 728 ( Colo. 1982 ).
Where husband conceded that wife put him through college pursuant to their oral prenuptial agreement, such agreement is not void pursuant to statute of frauds since oral contracts otherwise unenforceable under § 38-10-101, et seq., may substitute for a writing if there is part performance of the oral contract. In re Lemoine-Hofmann, 827 P.2d 587 (Colo. App. 1992).
Standard for review compared with review of antenuptial agreement. The standard applied for court review of the division of property in a separation agreement allows the court more discretion than the standard for court review of the division of property in an antenuptial agreement. In re Manzo, 659 P.2d 669 (Colo. 1983).
Courts reviewing separation agreements prior to entry of a decree of dissolution need more latitude than is allowed for review of antenuptial agreements because of the public policy concern for safeguarding the interests of a spouse whose consent to the agreement may have been obtained under more emotionally stressful circumstances, especially if that spouse is unrepresented by counsel. In re Manzo, 659 P.2d 669 (Colo. 1983).
Where parties to a divorce action had settled all their differences by agreement, and the only duties of husband are those set forth therein, there being no authority for the allowance of attorney fees to the wife, the court was without authority to award such fees. Irwin v. Irwin, 150 Colo. 261 , 372 P.2d 440 (1962); Newey v. Newey, 161 Colo. 395 , 421 P.2d 464, 422 P.2d 641 (1967).
The trial court, in determining the pecuniary provision for the wife upon granting a decree of divorce to her, has no right to disregard a previous agreement free from fraud, collusion, or compulsion, and fair to her, entered into between her and her husband in contemplation of a divorce, settling and adjusting all their property rights, including dower, alimony, and support. Newey v. Newey, 161 Colo. 395 , 421 P.2d 464, 422 P.2d 641 (1967).
Where there was a self-operative trust agreement between the parties to a divorce action in settlement of their property rights, such agreement was binding upon the parties, and the court was without jurisdiction to set it aside, no showing of fraud, duress, or mistake appearing. Brown v. Brown, 131 Colo. 467 , 283 P.2d 951 (1955).
Formerly, an agreement between husband and wife which provided for alimony or property settlement in contemplation of divorce was presumptively fair, and the burden was on the wife to establish the contrary. Newey v. Newey, 161 Colo. 395 , 421 P.2d 464, 422 P.2d 641 (1967).
An agreement between present spouses entered into "attendant upon" separation or dissolution must be considered a separation agreement, rather than a marital agreement, even if it was signed prior to filing for dissolution of marriage or legal separation. If an agreement is executed under circumstances accompanying, connected with, or surrounding a contemplated divorce or separation, it is considered a separation agreement. In re Bisque, 31 P.3d 175 (Colo. App. 2001); In re Lafaye, 89 P.3d 455 (Colo. App. 2003).
Whether an agreement is executed "attendant upon" a contemplated dissolution is a question of fact for the trial court, and the court's findings will not be set aside unless clearly erroneous. In re Lafaye, 89 P.3d 455 (Colo. App. 2003).
Termination of a dissolution proceeding as a result of the death of one of the parties did not render the controversy over the antenuptial agreement moot. Even though the death of one spouse mooted the dissolution proceeding, because the antenuptial agreement had a practical legal effect on an ongoing probate proceeding, the trial court was in error when it ruled the agreement invalid. Schwartz v. Schwartz, 183 P.3d 552 (Colo. 2008).
III. UNCONSCIONABLE AGREEMENTS.
The court is not required to approve blindly an agreement it finds unconscionable. In re Eller, 38 Colo. App. 74, 552 P.2d 30 (1976).
Provisions of a proposed separation settlement agreement proffered for incorporation into a dissolution decree may be refused as "unconscionable" if the trial court concludes that the agreement is not fair, reasonable, and just. In re Carney, 631 P.2d 1173 (Colo. App. 1981).
Court may determine whether written separation agreement accurately expresses intent and agreement of parties and may exercise its equitable powers where necessary before this section becomes applicable. In re Deines, 44 Colo. App. 98, 608 P.2d 375 (1980).
Unconscionability has no relevance to testing of custody agreement. In re Lawson, 44 Colo. App. 105, 608 P.2d 378 (1980).
In determining whether an agreement is, or has become, unconscionable, the trial court should consider and apply the pertinent criteria set forth in the following sections: This section as to the economic circumstances of the parties; § 14-10-113 (1) as to the division of property; § 14-10-114 (1) as to maintenance; and § 14-10-115 (1) as to child support. In re Lowery, 39 Colo. App. 413, 568 P.2d 103 (1977), aff'd, 195 Colo. 86 , 575 P.2d 430 (1978).
Review of provisions before incorporation into dissolution decree. Before a court incorporates property division provisions of a separation agreement into a dissolution decree, it should first review the provisions for fraud, overreaching, concealment of assets, or sharp dealing not consistent with the obligations of marital partners to deal fairly with each other, and then look at the economic circumstances of the parties which result from the agreement, including a determination whether under the totality of the circumstances the property disposition is fair, just and reasonable. In re Manzo, 659 P.2d 669 ( Colo. 1983 ); In re Seely, 689 P.2d 1154 (Colo. App. 1984).
To set aside a property settlement agreement prior to its being incorporated in a dissolution decree, the court need not find that overreaching, inequality of bargaining power, or other elements of fraud are present. Rather, before the agreement is set forth in the decree, a court may set aside as unconscionable any agreement that is not "fair, reasonable and just". In re Wigner, 40 Colo. App. 253, 572 P.2d 495 (1977); In re Thornhill, 200 P.3d 1083 (Colo. App. 2008), aff'd in part and rev'd in part on other grounds, 232 P.3d 782 ( Colo. 2010 ).
Appellate court was not bound by the determination of the trial court applying the unconscionability standard set forth in this section to an agreement, inasmuch as the resolution of that issue would be based upon the interpretation of the document and on uncontroverted facts. In re Lemoine-Hofmann, 827 P.2d 587 (Colo. App. 1992); In re Thornhill, 200 P.3d 1083 (Colo. App. 2008), aff'd in part and rev'd in part on other grounds, 232 P.3d 782 ( Colo. 2010 ).
Provision for support payment increases based on salary increases allowable. A provision in a separation agreement that the amount of child support payments to be made by husband would increase in proportion to actual increases in husband's salary is allowable and creates no presumption of unconscionability which would violate this section. In re Pratt, 651 P.2d 456 (Colo. App. 1982).
In order for agreement for binding Rabbinical arbitration to be enforceable, it must be conscionable and must be entered into by the parties voluntarily after full disclosure. In re Popack, 998 P.2d 464 (Colo. App. 2000).
Separation agreement giving wife approximately 91 percent of the marital property and entered into when husband's emotional state was adversely affected by the circumstances surrounding the execution of the agreement was unfair. In re Bisque, 31 P.3d 175 (Colo. App. 2001).
Separation agreement that did not provide wife with interest on her share of husband's business paid out over time was unconscionable. In the parties' separation agreement, husband agreed to make monthly payments to wife over a 10-year period for payment of her share of the value of the marital business. The agreement did not require the husband to pay interest on the total sum owed to wife or to secure the obligation. The lack of an interest provision in the agreement rendered the entire agreement unconscionable. In re Thornhill, 200 P.3d 1083 (Colo. App. 2008), aff'd in part and rev'd in part on other grounds, 232 P.3d 782 ( Colo. 2010 ).
IV. INCORPORATION OF AGREEMENT INTO DECREE.
Formerly, where the stipulation and property settlement was approved by the courts, but the terms thereof were not set forth in a decree of divorce, the rights of the parties rested upon a contract, and not upon the decree, and were contractual and not decreed rights and obligations. Murphy v. Murphy, 138 Colo. 516 , 335 P.2d 280 (1959); Cawley v. Cawley, 139 Colo. 439 , 340 P.2d 122 (1959).
Formerly, where parties to a divorce action entered into a binding contract settling all their differences, the obligation of each to the other stemmed from the contract, and relief, if any, must have been based upon the rights of the parties under the contract. Irwin v. Irwin, 150 Colo. 261 , 372 P.2d 440 (1962).
Formerly, where a trial court in a divorce action had no part in determining the property and financial rights of the parties, other than to approve and confirm an agreement purporting to settle all such financial and property rights, the incorporation of such agreement by references in the interlocutory or final decree in the action did not make the terms of such agreement an order or decree of the court, and was not a determination by the court of the respective rights of the parties, but was their voluntary adjustment of their differences, and unless the terms thereof are adopted by the court and fully and specifically set forth in the order or decree, the rights of the parties rest wholly upon the contract and not upon the decree of the court. Murphy v. Murphy, 138 Colo. 516 , 335 P.2d 280 (1959).
Prior to incorporation in decree, separation agreement is contract. Prior to its incorporation in a dissolution decree, a separation agreement is a contract between the parties to a marriage. In re Manzo, 659 P.2d 669 (Colo. 1983).
Subsection (5) is inapplicable where child support provisions of an agreement have not been incorporated into the dissolution decree. The provisions remain enforceable as contract terms. Williamson v. Williamson, 39 P.3d 1199 (Colo. App. 2001).
A reference to a separation agreement and an approval thereof by the court is sufficient to make it a part of the decree. Berglund v. Berglund, 28 Colo. App. 382, 474 P.2d 800 (1970).
The terms of any agreement must have been fully and specifically set forth in a decree. Murphy v. Murphy, 138 Colo. 516 , 335 P.2d 280 (1959).
Incorporation by reference allowed. The wording in subsection (4)(a) that "its terms shall be set forth in the decree" does not prohibit incorporation by reference. In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).
When an agreement has been incorporated by reference into the decree, it is as effectively a part thereof as if recited therein in haec verba. In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).
So long as it is clear what document is being referred to and that the parties intended for it to be a part of the decree, such incorporation is within the underlying purposes of this section and there is no apparent reason for requiring the recopying of the words into the court order. In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).
If an executed agreement for a division of property was not incorporated in or made a part of an interlocutory and final decree of divorce, and was not reserved for future action, it was not merged in the divorce proceedings. Cawley v. Cawley, 139 Colo. 439 340 P.2d 122 (1959).
If the property rights and obligations of the parties to a divorce action who had entered into a settlement agreement were to rest upon the court decree, then any such agreement as to those rights should have been fully and specifically set forth in the decree in order that the duties and rights could be definitely ascertained from the decree itself. Taylor v. Taylor, 147 Colo. 140 , 362 P.2d 1027 (1961).
Failure to attach prior stipulation as to maintenance of no consequence. Where both parties clearly intended to have a copy of the stipulation regarding maintenance, child support, and division of property, "a part and portion of the decree of dissolution", the absence of any question as to what document is being alluded to, and the agreement by the husband's lawyer, at the hearing for the decree, to the adoption by reference of the stipulation in the earlier separate maintenance case, make the failure to have a copy identified as an exhibit and attached to the decree of no consequence. In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).
Incorporation of parties' agreement regarding medical insurance and expenses into permanent orders was not beyond the trial court's jurisdiction, and father's failure to pay such expenses could constitute contempt. In re Alverson, 981 P.2d 1123 (Colo. App. 1999).
V. MODIFICATION.
Formerly, where parties to a divorce action entered into an agreement settling their property rights, which agreement it incorporated in the final decree, the court was thereafter without jurisdiction -- no fraud in procuring the settlement appearing -- to modify the terms of the decree concerning such property rights in the absence of consent of the parties. Brown v. Brown, 131 Colo. 467 , 283 P.2d 951 (1955); Magarrell v. Magarrell, 144 Colo. 228 , 355 P.2d 946 (1960); Lay v. Lay, 162 Colo. 43 , 425 P.2d 704 (1967); Berglund v. Berglund, 28 Colo. App. 382, 474 P.2d 800 (1970); Watson v. Watson, 29 Colo. App. 449, 485 P.2d 919 (1971); Ingels v. Ingels, 29 Colo. App. 585 487 P.2d 812 (1971).
Modification or revocation of agreement incorporated into decree. Where the parties' property settlement agreement has been incorporated into the decree of dissolution, it is subject to revocation or modification to the same extent as a property division rendered solely by the court. In re Stroud, 631 P.2d 168 (Colo. 1981).
Modification of property division provisions. Once property division provisions of a separation agreement have been incorporated into a dissolution of marriage decree, they may not be set aside or modified unless the conditions of C.R.C.P. 60 are met. In re Seely, 689 P.2d 1154 (Colo. App. 1984); Camack v. Camack, 62 P.3d 1097 (Colo. App. 2002).
When court has power to modify maintenance. A trial court has authority to test a settlement agreement on the standard of present unconscionability and for possible modification of maintenance under two circumstances: If the agreement or the decree reserves that power to the trial court, or, if the agreement and the decree are silent on the power to modify. In re Thompson, 640 P.2d 279 (Colo. App. 1982).
The court retained jurisdiction to modify the separation agreement where the agreement specifically provided that the issue of retirement benefits obtained as a result of the husband's military service shall remain open and modifiable. In re Sinkovich, 830 P.2d 1101 (Colo. App. 1992).
Restriction of court's jurisdiction to modify must be unequivocal. While subsection (6) permits the parties to restrict the jurisdiction of the court to modify the maintenance terms of a settlement agreement, such a restriction must specifically and unequivocally preclude modification. In re Rother, 651 P.2d 457 (Colo. App. 1982).
Where maintenance provision not modifiable. Where there was no reservation in the trial court of the power to modify a maintenance provision, the court cannot do so later. In re Thompson, 640 P.2d 279 (Colo. App. 1982).
The waiver of the right to seek modification in and of itself could well be the consideration for a concession in the amount or duration of maintenance, or in the property received by a party. Thus, to permit reconsideration of the amount of maintenance contracted for, without also reopening the property division, would be inequitable. In re Thompson, 640 P.2d 279 (Colo. App. 1982).
Modification by parties' agreement not reservation to court of power. The fact that an agreement allows modification by agreement of the parties is not a reservation to the court of the power to modify; rather, it is a limitation on the court's power. In re Thompson, 640 P.2d 279 (Colo. App. 1982).
Only unequivocal language in the terms of the settlement precludes the court from modifying the support provisions. No such language existed where the settlement provided that the period for payment of maintenance could be extended by further order of the court. Aldinger v. Aldinger, 813 P.2d 836 (Colo. App. 1991).
Where the parties' dissolution decree incorporated a separation agreement that stated that the husband's retirement benefits remained open and modifiable, the trial court had the authority to divide the husband's military retirement pension. In re Sinkovich, 830 P.2d 1101 (Colo. App. 1992).
Modification of agreement permitted upon showing of fraud or overreaching. Where the terms of a divorce decree specifically preclude modification, without the written consent of the parties, a court can modify the agreement only upon a showing of fraud or overreaching. In re Cohen, 44 Colo. App. 200, 610 P.2d 1092 (1980).
Where separation agreement and alimony not modifiable. Where a separation agreement was adopted and incorporated into the decree of divorce, and the agreement did not reserve to the court jurisdiction to modify the terms of the alimony provision, nor did the court in its order adopting and incorporating the agreement into the divorce decree specifically reserve the right to modify the terms thereof, the court cannot later modify the agreement or the alimony provisions. Burleson v. District Court, 196 Colo. 455 , 586 P.2d 665 (1978).
Waiver clause in separation agreement is binding to bar pursuit of further spousal maintenance since promised maintenance payments were actually made despite technical default regarding the method of payment where wife acquiesced to such manner and there was no showing of fraud, collusion, or compulsion. In re Vincent, 709 P.2d 959 (Colo. App. 1985).
Modification of parenting time and the related nonmodification of child support agreement was made an order of court and so constituted an amendment to the original order and therefore are no longer enforceable as contract terms because they were made an order of court. In re Rosenthal, 903 P.2d 1174 (Colo. App. 1995).
The promise in a separation agreement to pay postsecondary education expenses, once adopted by the court and incorporated in a decree of dissolution, is no longer enforceable as a contract term. In re Ludwig, 122 P.3d 1056 (Colo. App. 2005).
VI. ENFORCEMENT.
Property lien to enforce agreement. A court may impose a lien on a party's property in order to enforce an agreement where the party has threatened to dispose of the property and put himself beyond the court's jurisdiction. In re Valley, 633 P.2d 1104 (Colo. App. 1981).
Separation agreement is incorporated into and superceded by decree and, therefore, governed by remedies available for the enforcement of a judgment. In re Meisner, 807 P.2d 1205 (Colo. App. 1990).
Although attorney fees cannot be awarded as a punitive sanction in a contempt proceeding, attorney fees can be awarded if the case involves an agreement or contract for an award of such fees to the prevailing party. Marital agreements governing the manner in which each party's attorney fees will be paid should be enforced by the trial court, and the determination of which party succeeded or prevailed under a contractual fee-shifting provision is committed to the discretion of the trial court subject to an abuse of discretion standard of review on appeal. In re Sanchez-Vigil, 151 P.3d 621 (Colo. App. 2006).
To be a prevailing party for the purpose of an award of attorney fees pursuant to a contract, the applicant must have succeeded upon a significant issue presented by the litigation and must have achieved some of the benefits sought in the lawsuit. A party need not prevail upon the "central" issue, only upon a significant one. In re Watters, 782 P.2d 1220 (Colo. App. 1989); In re Sanchez-Vigil, 151 P.3d 621 (Colo. App. 2006).
14-10-113. Disposition of property - definitions.
-
In a proceeding for dissolution of marriage or in a proceeding for legal separation or in a proceeding for disposition of property following the previous dissolution of marriage by a court which at the time of the prior dissolution of the marriage lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court, subject to the provisions of subsection (7) of this section, shall set apart to each spouse his or her property and shall divide the marital property, without regard to marital misconduct, in such proportions as the court deems just after considering all relevant factors including:
- The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
- The value of the property set apart to each spouse;
- The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse with whom any children reside the majority of the time; and
- Any increases or decreases in the value of the separate property of the spouse during the marriage or the depletion of the separate property for marital purposes.
-
For purposes of this article only, and subject to the provisions of subsection (7) of this section, "marital property" means all property acquired by either spouse subsequent to the marriage except:
- Property acquired by gift, bequest, devise, or descent;
- Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
- Property acquired by a spouse after a decree of legal separation; and
- Property excluded by valid agreement of the parties.
- Subject to the provisions of subsection (7) of this section, all property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property described in this subsection (3) is overcome by a showing that the property was acquired by a method listed in subsection (2) of this section.
- Subject to the provisions of subsection (7) of this section, an asset of a spouse acquired prior to the marriage or in accordance with subsection (2)(a) or (2)(b) of this section shall be considered as marital property, for purposes of this article only, to the extent that its present value exceeds its value at the time of the marriage or at the time of acquisition if acquired after the marriage.
- For purposes of this section only, property shall be valued as of the date of the decree or as of the date of the hearing on disposition of property if such hearing precedes the date of the decree.
-
-
- Notwithstanding any anti-assignment, anti-alienation, or other provision of law to the contrary, all retirement benefits of any nature for public employees from a plan described in section 401 (a), 403 (b), 414 (d), or 457 of the federal "Internal Revenue Code of 1986", as amended, that is established pursuant to Colorado law shall be, in all actions for dissolution of marriage, legal separation, and declaration of invalidity of marriage, divisible directly by the plan upon written agreement of the parties to such an action pursuant to paragraph (c) of this subsection (6). (6) (a) (I) Notwithstanding any anti-assignment, anti-alienation, or other provision of law to the contrary, all retirement benefits of any nature for public employees from a plan described in section 401 (a), 403 (b), 414 (d), or 457 of the federal "Internal Revenue Code of 1986", as amended, that is established pursuant to Colorado law shall be, in all actions for dissolution of marriage, legal separation, and declaration of invalidity of marriage, divisible directly by the plan upon written agreement of the parties to such an action pursuant to paragraph (c) of this subsection (6).
- The provisions of this subsection (6) shall apply to all dissolution of marriage, legal separation, and declaration of invalidity of marriage actions filed on or after January 1, 1997, and all dissolution of marriage, legal separation, or declaration of invalidity of marriage actions filed prior to January 1, 1997, in which the court did not enter a final property division order concerning the parties' public employee retirement benefits prior to January 1, 1997.
-
As used in this subsection (6), unless the context otherwise requires:
- "Alternate payee" means a party to a dissolution of marriage, legal separation, or declaration of invalidity action who is not the participant of the public employee retirement plan divided or to be divided but who is married to or was married to the participant and who is to receive, is receiving, or has received all or a portion of the participant's retirement benefit by means of a written agreement as described in paragraph (c) of this subsection (6).
- "Defined benefit plan" means a retirement plan that is not a defined contribution plan and that usually provides benefits as a percentage of the participant's highest average salary, based on the plan's benefit formula and the participant's age and service credit at the time of retirement.
- "Defined contribution plan" means a retirement plan that provides for an individual retirement account for each participant and the benefits of which are based solely on the amount contributed to the participant's account and that includes any income, expenses, gains, losses, or forfeitures of accounts of other participants that may be allocated to the participant's account.
- "Participant" means the person who is an active, inactive, or retired member of the public employee retirement plan.
-
- The parties may enter into a marital agreement pursuant to part 3 of article 2 of this title or a separation agreement pursuant to section 14-10-112 concerning the division of a public employee retirement benefit between the parties pursuant to a written agreement. The parties shall submit such written agreement to the plan administrator within ninety days after entry of the decree and the permanent orders regarding property distribution in a proceeding for dissolution of marriage, legal separation, or declaration of invalidity of marriage.
-
A written agreement dividing a public employee retirement benefit shall:
- Specify the full legal name of the retirement plan or plans to which it applies;
- Specify the name, social security number, and last-known mailing address of the participant and the alternate payee as well as the alternate payee's relationship to the participant;
- For an agreement concerning a defined benefit plan, specify the distribution method, as described in subparagraph (III) of this paragraph (c), subject, if the plan permits, to benefit adjustments payable at the same time and in the same manner as any benefit adjustments applied to the participant's distribution;
- For an agreement concerning a defined contribution plan, specify the alternate payee's portion of the participant's account as a fixed lump-sum amount, or as a percentage, in either case, as of a specified date, from specific accounts of the participant and, unless the plan adopts rules and regulations pursuant to paragraph (d) of this subsection (6) permitting the plan to retain the alternate payee's portion of the participant's account, require that distribution to the alternate payee be made within one hundred twenty days after a certified court order approving the agreement has been submitted to and received by the plan;
- Not provide for payments to the alternate payee or to the participant for which he or she would not otherwise be eligible if there were no dissolution of marriage, legal separation, or declaration of invalidity action pending;
- For an agreement concerning a defined benefit plan, not require the plan to pay the alternate payee prior to the date payments commence to the participant or prior to the participant attaining age sixty-five or actual retirement date, whichever date is earlier, or at such later date as the parties may otherwise agree in writing;
- For an agreement concerning a defined benefit plan, provide that the alternate payee's rights to payments terminate upon the involuntary termination of benefits payable to the participant or upon the death of the alternate payee, whichever occurs first, unless the parties agree to elect, or have already elected, a benefit option under the plan that provides for a cobeneficiary benefit to the alternate payee;
- Provide that the manner of payment shall be in a form or type permissible under the plan. The agreement shall not require through this subsection (6) the payment of a benefit, benefit amount, or distribution option not otherwise set out in the plan document or statute.
- Not require the plan to pay benefits that are already required to be paid to another alternate payee or are already subject to an assignment or lien;
- Specify that it shall apply to successor plans;
- Comply with any rules or procedures promulgated pursuant to paragraph (d) of this subsection (6); and
- Specify that, once approved by the court, the order approving the agreement shall be certified by the clerk of the court and submitted to and received by the retirement plan at least thirty days before the plan may make its first payment.
-
The written agreement between the parties described in subparagraph (II) of this paragraph (c) shall contain only one method or formula to be applied to divide the defined benefit plan. For purposes of sub-subparagraph (C) of subparagraph (II) of this paragraph (c), the parties may select any one of the following methods by which to divide the defined benefit plan:
- A fixed monetary amount;
- A fixed percentage of the payment to the participant;
- The time-rule formula determined by dividing the number of months of service credit acquired under the plan during the marriage as set forth in the court's order by the number of months of service credit in such plan at the time of the participant's retirement as determined by the plan, which quotient shall be multiplied by a percentage specified in the court's order, and the product thereof shall be further multiplied by the amount of the payment to the participant at the date of retirement;
- A formula determined by dividing the number of months of service credit acquired under the plan during the marriage as set forth in the court's order by the number of months of service credit in such plan as of the date of the decree as determined by the plan, regardless of when the participant is expected to retire, which quotient shall be multiplied by a percentage specified in the court's order, and the product thereof shall be further multiplied by the amount of the payment the participant would be entitled to receive as if the participant were to retire and receive an unreduced benefit on the date of the decree; or
- Any other method or formula mutually agreed upon by the parties that specifies a dollar amount or percentage payable to the alternate payee.
- The trustees or the administrator of each retirement plan may promulgate rules or procedures governing the implementation of this subsection (6) with respect to public employee retirement plans that they administer. Such rules or procedures may include the requirement that a standardized form be used by the parties and the court for an order approving the parties' agreement to be effective as well as other provisions consistent with the purpose of this subsection (6).
- Compliance with the provisions of this subsection (6) by a public employee retirement plan shall not subject the plan to any portions of the federal "Employee Retirement Income Security Act of 1974", as amended, that do not otherwise affect governmental plans generally. Any plan that reasonably complies with an order approving an agreement entered into pursuant to this subsection (6) shall be relieved of liability for payments made to the parties subject to such order.
- A court shall have no jurisdiction to enter an order dividing a public employee retirement benefit except upon written agreement of the parties pursuant to this subsection (6). A court shall have no jurisdiction to modify an order approving a written agreement of the parties dividing a public employee retirement benefit unless the parties have agreed in writing to the modification. A court may retain jurisdiction to supervise the implementation of the order dividing the retirement benefits.
-
-
- For purposes of subsections (1) to (4) of this section only, except with respect to gifts of nonbusiness tangible personal property, gifts from one spouse to another, whether in trust or not, shall be presumed to be marital property and not separate property. This presumption may be rebutted by clear and convincing evidence.
- For purposes of subsections (1) to (4) of this section only, "property" and "an asset of a spouse" shall not include any interest a party may have as an heir at law of a living person or any interest under any donative third party instrument which is amendable or revocable, including but not limited to third-party wills, revocable trusts, life insurance, and retirement benefit instruments, nor shall any such interests be considered as an economic circumstance or other factor.
-
- The provisions of this subsection (7) shall apply to all causes of action filed on or after July 1, 2002. The provisions of this subsection (7) shall also apply to all causes of action filed before said date in which a final property disposition order concerning matters affected by this subsection (7) was not entered prior to July 1, 2002.
- For purposes of this paragraph (c), "final property disposition order" means a property disposition order for which the time to appeal has expired or for which all pending appeals have been finally concluded.
Source: L. 71: R&RE, p. 525, § 1. C.R.S. 1963: § 46-1-13. L. 73: pp. 553, 555, §§ 6, 7, 12. L. 75: IP(1) amended, p. 210, § 25, effective July 16. L. 96: (6) added, p. 1457, § 1, effective January 1, 1997. L. 97: (6)(a) amended, p. 100, § 1, effective March 24. L. 98: (6)(c)(I) and (6)(c)(II)(C) amended and (6)(c)(III) added, p. 355, § 1, effective August 5; (1)(c) amended, p. 1397, § 40, effective February 1, 1999. L. 99: (6)(c)(I), (6)(c)(II)(L), and (6)(f) amended, p. 46, § 1, effective March 15. L. 2002: (6)(a)(I) amended, p. 138, § 1, effective March 27; IP(1), IP(2), (3), and (4) amended and (7) added, p. 1054, § 1, effective June 1. L. 2004: (6)(a)(I) amended, p. 222, § 5, effective April 1.
Cross references: For the federal "Employee Retirement Income Security Act of 1974", see 29 U.S.C. sec. 1001 et seq.
ANNOTATION
Analysis
- I. General Consideration.
- II. Division of Property.
- III. Valuation of Property.
- IV. Scope of Review.
- V. Enforcement.
I. GENERAL CONSIDERATION.
Law reviews. For note, "Effects of Reconciliation on Separation Agreements in Colorado", see 51 U. Colo. L. Rev. 399 (1980). For article, "The Economy: Its Effects on Family Law", see 11 Colo. Law. 97 (1982). For article, "Pre-Nuptial Agreements Revisited", see 11 Colo. Law. 1882 (1982). For article, "Marital Property", see 13 Colo. Law. 1209 (1984). For article, "Taxation", which discusses a Tenth Circuit decision dealing with periodic payments as alimony or property settlement, see 61 Den. L.J. 392 (1984). For article, "Domestic Case Update", see 14 Colo. Law. 209 (1985). For article, "Division of Pension Benefits in Divorce Proceedings", see 14 Colo. Law. 378 (1985). For article, "Cohabitation Agreements in Colorado", see 15 Colo. Law. 97 9 (1986). For article, "Common Law Marriage in Colorado", see 16 Colo. Law. 25 2 (1987). For article, "Division of Civil Service Retirement Benefits in Divorce", see 17 Colo. Law. 643 (1988). For article, "Standards for Tracing Marital Property Back to Non-Marital Property", see 17 Colo. Law. 853 (1988). For article, "Determining Benefits for Former Spouses of Military Personnel", see 19 Colo. Law. 1073 (1990). For article, "Classifying Income, Rents, and Profits from Separate Property", see 24 Colo. Law. 1303 (1994). For article, "Marital or Separate Property: An Overview for Practitioners", see 24 Colo. Law. 571 (1995). For article, "Employee Stock Options and Restricted Shares: Determining and Dividing the Marital Property", see 25 Colo. 87 (Oct. 1996). For article, "Valuing Business Goodwill in a Divorce", see 26 Colo. Law. 53 (Apr. 1997). For article, "Establishing Separate Property Through Asset Tracing After Burford", see 28 Colo. Law. 55 (Jan. 1999). For article, "How Income Taxes Affect Property Settlements", see 29 Colo. Law. 55 (Jan. 2000). For article, "Divorce Considerations Relevant to an Estate Planning Practice", see 29 Colo. Law. 53 (Feb. 2000). For article, "Retirement Benefits in Divorce: Mixing, Matching, and Offsetting", see 29 Colo. Law. 67 (June 2000). For article, "Balanson: Drafting Trust to Deflect the Spousal Creditor", see 30 Colo. Law. 131 (Oct. 2001). For article, "Planning for Community Property in Colorado", see 31 Colo. Law. 79 (June 2002). For article, "Complex Financial Issues in Family Law Cases", see 37 Colo. Law. 53 (Oct. 2008). For article, "Determining When Trusts are Property for the Purpose of Equitable Division", see 39 Colo. Law. 39 (June 2010). For article, "Distributing Personal Injury Settlements and Workers' Compensation Awards in Divorce", see 45 Colo. Law. 25 (Oct. 2016). For article, "'Til Death Do Us Part", see 46 Colo. Law. 34 (July 2017). For article, "How Powers of Appointment Affect Irrevocable Trust Remainder Interests in Dissolution of Marriage Proceedings", see 48 Colo. Law. 48 (Dec. 2019).
Annotator's note. Since § 14-10-113 is similar to repealed § 46-1-5(2), C.R.S. 1963, § 46-1-5, CRS 53, CSA, C. 56, § 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Subsection (7)(b) is not unconstitutionally retrospective. In re Balanson, 107 P.3d 1037 (Colo. App. 2004).
Uniform Dissolution of Marriage Act provides separate sections that govern the different elements of a dissolution order, specifically property disposition, maintenance, child support, and attorney fees. The court is required to make separate orders regarding these elements based on separate considerations, and may not commingle one element with another. In re Huff, 834 P.2d 244 (Colo. 1992).
There is a distinction between maintenance awards and property settlements. Property divisions are intended to accomplish a just apportionment of marital property over time, whereas maintenance is intended be a substitute for marital support that can be used, for example, to ease a spouse's transition into the work force and prevent the spouse from becoming dependent on public assistance. In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).
Division of property is mandatory under this section, whereas an award of maintenance is discretionary under § 14-10-114. In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).
This statute is a legislative recognition of preexisting Colorado law. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1973), aff'd, 523 F.2d 853 (10th Cir. 1975).
Awarding of attorney fees is discretionary with trial court and will not be disturbed on review if supported by the evidence. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev'd in part on other grounds, 653 P.2d 728 ( Colo. 1982 ); In re Kiefer, 738 P.2d 54 (Colo. App. 1987).
Equitable lien created by decree of dissolution. Where wife was ordered to quitclaim her undivided one-third interest in the family home to husband and his mother in exchange for a promissory note representing the value of such interest, an equitable lien to prevent unjust enrichment was imposed on the property because repayment of the note was conditioned in part on events involving disposition of the property. Leyden v. Citicorp Indus. Bank, 782 P.2d 6 (Colo. 1989).
The needs of the children are of paramount importance; therefore, statutory provisions may not be modified by agreement if to do so would affect the rights of the child whom the statute is designed to protect. In re Miller, 790 P.2d 890 (Colo. App. 1990).
Attorney fees are not a non-challengeable marital debt under this section. In re Rieger, 827 P.2d 625 (Colo. App. 1992).
Partition of marital property pursuant to § 38-28-101 after the entry of the final dissolution decree is permissible, but the partition order must not conflict with explicit provisions of the decree. Wilson v. Prentiss, 140 P.3d 288 (Colo. App. 2006).
Applied in In re Mitchell, 195 Colo. 399 , 579 P.2d 613 (1978); Mayer v. District Court, 198 Colo. 199 , 597 P.2d 577 (1979); In re Engelman, 43 Colo. App. 531, 605 P.2d 490 (1979); In re Hartford, 44 Colo. App. 303, 612 P.2d 1163 (1980); In re Carney, 631 P.2d 1173 ( Colo. 1981 ); In re Stewart, 632 P.2d 287 (Colo. App. 1981); In re Everhart, 636 P.2d 1321 (Colo. App. 1981); In re Manzo, 659 P.2d 669 ( Colo. 1983 ).
II. DIVISION OF PROPERTY.
A. In General.
Law reviews. For article, "Property or Expectancy: The Division of Trust Assets at Dissolution of Marriage", see 30 Colo. Law. 63 (Feb. 2001). For article, "The Continuing Evolution of Balanson: Trusts as Property in Divorce", see 34 Colo. Law. 79 (June 2005). For article, "Divorce in the Land of Startups", see 43 Colo. Law. 47 (Dec. 2014).
This statute makes property division mandatory. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1973), aff'd, 523 F.2d 853 (10th Cir. 1975); In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).
Where the trial court has the necessary jurisdiction, over not only the subject matter but the persons as well, it is required to divide the marital property in accordance with this section. In re Quay, 647 P.2d 693 (Colo. App. 1982).
Language of subsection (1)(c) is not mandatory. In re Warrington, 44 Colo. App. 294, 616 P.2d 177 (1980).
Colorado is not a community property state. In re Ellis, 36 Colo. App. 234, 538 P.2d 1347 (1975), aff'd, 191 Colo. 317 , 552 P.2d 506 (1976).
The statutory mandate to distribute property equitably does not require equality. In re Warrington, 44 Colo. App. 294, 616 P.2d 177 (1980); In re Weiss, 695 P.2d 778 (Colo. App. 1984); In re Fenimore, 782 P.2d 872 (Colo. App. 1989); In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied 846 P.2d 189 ( Colo. 1993 ); In re Morehouse, 121 P.3d 264 (Colo. App. 2005).
The parties need not be accorded equal shares in the marital estate. In re Boyd, 643 P.2d 804 (Colo. App. 1982).
It has been held repeatedly that in matters of division of property the trial court is imbued with broad discretion, and that the mandate to distribute property equitably does not require equality. In re Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975).
Facially disproportionate division of property not inequitable where economic circumstances of each spouse were properly considered. In re Sorensen, 679 P.2d 612 (Colo. App. 1984).
There is no requirement that the court divide property with precise equality in order to achieve an equitable division. In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979).
Increases in separate property or marital property do not mandate that such property be divided equally, nor does it necessarily preclude the award of substantially all of such property to only one spouse. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).
A trial judge cannot in all circumstances evaluate marital property with razor-sharp exactness so that each party's share has a precise monetary value. Moss v. Moss, 190 Colo. 491 , 549 P.2d 404 (1976).
The distribution of marital property must be just and equitable, but need not be necessarily equal. In re McGinnis, 778 P.2d 281 (Colo. App. 1989); In re Jaeger, 883 P.2d 577 (Colo. App. 1994); In re Goldin, 923 P.2d 376 (Colo. App. 1996); In re Stumpf, 932 P.2d 845 (Colo. App. 1996); In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999).
This section authorizes the trial court to make an equitable and just division of the property of persons involved in divorce proceedings as that property is shown to exist at the time of the order entered with regard thereto. Menor v. Menor, 154 Colo. 475 , 391 P.2d 473 (1964).
The dissolution court has jurisdiction to grant relief but only in equity and not at law. Tort claims concerning property that was the subject of the dissolution court may not be joined into an otherwise equitable dissolution proceeding. In re Mockelmann, 121 P.3d 335 (Colo. App. 2005).
Court may not become a surrogate attorney for party who has chosen not to appear before the court in order to reach an equitable division of marital property. Therefore, trial court did not abuse its discretion in failing to elicit evidence concerning husband's current earnings, the use husband made of funds he withdrew from the joint bank account, or the classification of certain property as separate or marital. In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999).
The public policies to be furthered under this act include dividing of assets equitably and mitigating the harm to spouses and children. These policies take precedence over any contract arguments that may be raised by either spouse. Thus, the trial court was correct in refusing husband's indemnification argument and in interpreting the divorce decree as requiring the husband to compensate the wife for the fair market value of business property apportioned to her in the equitable distribution. In re Plesich, 881 P.2d 379 (Colo. App. 1994).
It is not objectionable that an exact dollar amount of the husband's contribution to assets cannot be determined from the testimony, as it is not a prerequisite to a fair and equitable division of property that such distribution be made in exact proportion to contribution of funds. Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971).
There is no mathematical formula for establishing a just and equitable property settlement, or alimony, or support. Carlson v. Carlson, 178 Colo. 283 , 497 P.2d 1006 (1972).
It is improper for the court to continue a joint or common tenancy between divorced spouses in marital property. Rather, in dividing the marital property, the court should leave to each party a definable portion of ownership. In re Paul, 821 P.2d 925 (Colo. App. 1991).
In dividing marital property, specific findings regarding value of assets are not required as long as basis for decision of trial court is apparent from its findings. In re Sharp, 823 P.2d 1387 (Colo. App. 1991).
This issue of property division in a divorce action is not one of marital fault, but whether the wife is entitled thereto by reason of having contributed to the accumulation or preservation of the assets sought to be divided, and whether her conduct was such as to justify her sharing in a division of such property. Liggett v. Liggett, 152 Colo. 110 , 380 P.2d 673 (1963); Kraus v. Kraus, 159 Colo. 331 , 411 P.2d 240 (1966); Carlson v. Carlson, 178 Colo. 283 , 497 P.2d 1006 (1972).
Although marital fault or misconduct may not be considered by the trial court when it is dividing marital assets, economic fault may be considered. Economic fault comes into play in extreme cases, such as a spouse's dissipation of marital assets in the contemplation of divorce, and it must be strictly confined so as not to circumvent the prohibition against consideration of marital fault. In re Jorgenson, 143 P.3d 1169 (Colo. App. 2006).
Formerly, it was only one of the elements to be taken into consideration, and in the absence of moral delinquency or a complete disregard of the marriage vows, individual fault should not have acted as an obstacle to an equitable division of property. Bell v. Bell, 156 Colo. 513 , 400 P.2d 440 (1965); Schrader v. Schrader, 156 Colo. 521 , 400 P.2d 675 (1965).
Maintenance and property settlement must be considered together to achieve just result in dissolution proceedings. If an order dividing property cannot stand, the provision for maintenance must also be set aside to permit the trial court to consider both matters in relation to each other upon remand. In re Lord, 626 P.2d 698 (Colo. App. 1980), appeal dismissed, 653 P.2d 385 ( Colo. 1982 ).
Property division must precede consideration of maintenance. In re Jones, 627 P.2d 248 (Colo. 1981); In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).
Fact that the parties waived maintenance has no bearing on the classification of stock shares as marital property; thus, wife's argument that because the stock purchase was made through a payroll deduction it constituted her compensation and could not be divided as property or considered maintenance, since both parties waived maintenance, was misplaced. In re Huston, 967 P.2d 181 (Colo. App. 1998).
There is a qualitative difference between a maintenance award and a division of property. A property division is final and non-modifiable absent conditions justifying relief from judgment. In re Wells, 833 P.2d 797 (Colo. App. 1991).
Statutory criteria for dividing property is general in nature, and the trial court has wide discretion in dividing marital property to accomplish a just result. In re Jackson, 698 P.2d 1347 (Colo. 1985).
Division of property must be based on the situation of the parties at the time of the decree rather than that at the time of their marriage. Shapiro v. Shapiro, 115 Colo. 505 , 176 P.2d 363 (1946); Stephenson v. Stephenson, 134 Colo. 96 , 299 P.2d 1095 (1956); Menor v. Menor, 154 Colo. 475 , 391 P.2d 473 (1964).
Subsection (1)(c) requires the trial court to consider the economic circumstances of the respective spouses at the time of the hearing relating to the division of marital property. Therefore, the trial court erred as a matter of law in considering the economic circumstances of the parties at the time of the dissolution, rather than at the time of the permanent orders, which occurred in the year following the entry of the dissolution. In re Burford, 26 P.3d 550 (Colo. App. 2001).
Every property division action depends on the particular facts of each case. Granato v. Granato, 130 Colo. 439 , 277 P.2d 236 (1954).
Many factors enter into the determination of what division of property shall be made in the event of a divorce, among these are the value of the estate to be divided; the financial condition of the parties; the ability of each spouse to earn money; how the property was acquired; the age and status of the parties, and all pertinent facts and circumstances bearing on the question. Nunemacher v. Nunemacher, 132 Colo. 300 , 287 P.2d 662 (1955); Brigham v. Brigham, 141 Colo. 41 , 346 P.2d 302 (1959); Kraus v. Kraus, 159 Colo. 331 , 411 P.2d 240 (1966); Larrabee v. Larrabee, 31 Colo. App. 493 504 P.2d 358 (1972).
Spouse's earning capabilities are properly part of the "economic circumstances" the court must consider in compliance with subsection (1). In re Faulkner, 652 P.2d 572 (Colo. 1982).
Future social security benefits may be properly considered as part of the "economic circumstances" the court must consider in compliance with subsection (1). The trial court may not, however, directly distribute marital property to offset the computed value of social security benefits. In re Morehouse, 121 P.3d 264 (Colo. App. 2005).
Contribution to an increase in separate property is an important factor, but not the sole factor to consider in dividing such property. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).
Value of husband's interest in corporation considered in determining division of property. Moss v. Moss, 190 Colo. 491 , 549 P.2d 404 (1976).
Factors such as occupational experience, coupled with education, training, and business background should also be considered in determining what division should be made of property. Carlson v. Carlson, 178 Colo. 283 , 497 P.2d 1006 (1972).
The award of rights in property to the wife was only another factor in the determination of the interests of the parties in the realty which they owned. McDonald v. McDonald, 150 Colo. 492 , 374 P.2d 690 (1962).
That the husband had transferred his property to his brother with fraudulent intent, and that it was reasonable to presume that he would not deal fairly, frankly, and openly with his wife and child, were facts properly to be considered by the court in making division of property. Shapiro v. Shapiro, 115 Colo. 505 , 176 P.2d 363 (1946).
Where the division of property was not in the nature of alimony or support money for the minor children, but was an equitable division based upon the fact that the wife, during marriage, in addition to the usual household duties, performed services that contributed to the husband's business advantage, a division of property could be ordered in addition to alimony. Shapiro v. Shapiro, 115 Colo. 505 , 176 P.2d 363 (1946).
The fact that much of the husband's property came by inheritance did not preclude the court from making an equitable division of property between a husband and a wife who had performed services contributing to her husband's business advantage, but was only one of many facts to be considered by the court. Shapiro v. Shapiro, 115 Colo. 505 , 176 P.2d 363 (1946).
Inherited property was formerly not per se excluded from consideration by the court in making a determination of the property rights of the parties. Santilli v. Santilli, 169 Colo. 49 , 453 P.2d 606 (1969).
Property division could be made even where a wife is not entitled to alimony. Britt v. Britt, 137 Colo. 524 , 328 P.2d 947 (1958).
It is not a necessary prerequisite that a wife show that she has contributed by funds or efforts to the acquiring of any specific property awarded her. Britt v. Britt, 137 Colo. 524 , 328 P.2d 947 (1958); Bell v. Bell, 156 Colo. 513 , 400 P.2d 440 (1965); Santilli v. Santilli, 169 Colo. 49 , 453 P.2d 606 (1969).
But whether the wife has contributed to or in some manner aided in the accumulation or preservation of the assets sought to be divided must be ascertained. Kraus v. Kraus, 159 Colo. 331 , 411 P.2d 240 (1966).
Where by her services beyond the usual duties of a homemaker, a wife contributes either funds or services which enable the husband to increase his property holdings, or to preserve those already held, the wife is entitled upon divorce to an equitable award of money or property as may be justified by the circumstances of the parties. Britt v. Britt, 137 Colo. 524 , 328 P.2d 947 (1958).
The pecuniary resources of the husband were not to be regarded as a basis for a division of property, which was not the purpose of an allowance for the support of the wife, but they had a bearing upon the condition in life of the parties and thus upon the necessities of the wife, for as had been recognized in considering the liability of a husband for necessaries supplied to his wife, the term "necessaries" in this connection was not confined to articles of food or clothing required to sustain life, but had a much broader meaning and included such articles for use by a wife as were suitable to maintain her and the family according to the property and condition in life of her husband. Vines v. Vines, 137 Colo. 449 , 326 P.2d 662 (1958).
Where a wife advanced $8,000 from her own funds to her husband to purchase property, a finding that the husband was indebted to the wife in such amount and that she should have had a lien on property to secure repayment thereof, being amply supported by the evidence, was not erroneous. Flor v. Flor, 148 Colo. 514 , 366 P.2d 664 (1961).
Where a wife in outburst of emotion, damaged or destroyed husband's personal effects, it was not error to award husband value thereof against the wife. Cohan v. Cohan, 150 Colo. 249 , 372 P.2d 149 (1962).
It was not a prerequisite to a fair and equitable division of property that the wife must show that she had contributed by funds or effort to the acquisition of the specific property awarded to her. Schrader v. Schrader, 156 Colo. 521 , 400 P.2d 675 (1965).
Where the husband was the owner of a minority stock interest and was not the owner of the home, piercing the corporate veil to determine the true value of an interest in a closely held corporation did not allow for an order that part of the corporation's property should be distributed to or used by a legal stranger, and the wife was not entitled to corporate assets, but to a sum of money, or possibly even shares of stock, based upon the fair value of her husband's interest. Kalcevic v. Kalcevic, 156 Colo. 151 , 397 P.2d 483 (1964).
A dissolution of a marriage must be effective before any court had power to decree a division of property between a husband and wife. Ikeler v. Ikeler, 84 Colo. 429 , 271 P. 193 (1928); McCoy v. McCoy, 139 Colo. 105 , 336 P.2d 302 (1959).
Otherwise, the parties would still be married, and while that status continues there is always the possibility of a termination of the separation, and a court is therefore without power to finally determine the property rights of the parties. Vines v. Vines, 137 Colo. 449 , 326 P.2d 662 (1958).
This section does not prohibit a hearing on the parties' property settlement before the entry of the divorce decree, but merely provides that at the time of the issuance of the divorce decree, or thereafter, on application the court may make orders relating to property divisions. Kalcevic v. Kalcevic, 156 Colo. 151 , 397 P.2d 483 (1964).
Personal service upon nonresident is not prerequisite to division of property. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).
Jurisdiction over petitioner extends to property in state. Where petitioner has possession of property located in Colorado, the property being specifically described in the petition as an asset subject to disposition, the court acquires control of the property by virtue of its jurisdiction over petitioner, and the court thereby obtains jurisdiction to determine the appropriate disposition of that property. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).
Where the trial court has jurisdiction to divide property of the parties by virtue of the fact that the property was located in Colorado, it can properly adjudicate the rights of the parties with respect to property owned by them in Colorado. In re Wilson, 653 P.2d 85 (Colo. App. 1982).
Where trial court had jurisdiction to divide a partnership interest equitably, wife had standing to challenge partnership's valuation of husband's partnership interest and a legally cognizable interest in its value. In re Nevarez, 170 P.3d 808 (Colo. App. 2007).
The trial court did not exceed its jurisdiction in requiring the husband to execute and deliver deeds conveying his interest in the property to the wife, because although it has generally been held that a divorce court in one state does not have the power directly to affect, by means of its decree, the title to real property situated in another state, where the decree itself does not operate as a conveyance, but was wholly an in personam decree requiring that a party under the court's jurisdiction execute the conveyance, the court did not exceed its jurisdiction. Larrabee v. Larrabee, 31 Colo. App. 493, 504 P.2d 358 (1972).
"Date of the hearing". Where the hearing on disposition of property takes more than one day and there is a substantial interval between hearing days, the "date of the hearing" referred to in subsection (5) is the day when the last evidence was presented on this matter. In re Femmer, 39 Colo. App. 277, 568 P.2d 81 (1977).
Where the trial court had jurisdiction to divide property at the time of entry of a final decree of divorce, but did not do so, nor then reserve the matter for further consideration, it lost jurisdiction to thereafter make a valid division of such property. Triebelhorn v. Turzanski, 149 Colo. 558 , 370 P.2d 757 (1962).
Because former § 46-1-5(2), C.R.S. 1963, did not contemplate or authorize the court to exercise continuing supervisory powers over the management of the property subject to division. Larrick v. Larrick, 30 Colo. App. 327, 491 P.2d 1401 (1971).
Former § 46-1-5(2), C.R.S. 1963, required that an order dividing the property of the parties to a divorce proceeding be made either at the time the divorce decree was issued, or within such "reasonable time thereafter as may be set by the court at the time of the issuance of said divorce decree". Larrick v. Larrick, 30 Colo. App. 327, 491 P.2d 1401 (1971).
Where the trial court retained the jurisdiction to award such alimony as may be just upon a proper showing, in no way altered the finality of a portion of the decree which determined the rights and interests of the parties in the real estate. McDonald v. McDonald, 150 Colo. 492 , 374 P.2d 690 (1962).
The trial court retained jurisdiction of the controversy concerning the property settlement between these divorced parties as to matters affecting their property rights following the death of the husband. Sarno v. Sarno, 28 Colo. App. 598, 478 P.2d 711 (1970).
Trust where wife settlor and sole income beneficiary. Where wife had established a trust with herself as sole income beneficiary, the court had jurisdiction, in a subsequent divorce action, to order the trustee to make payments from the trust to the husband. In re Kaladic v. Kaladic, 41 Colo. App. 419, 589 P.2d 502 (1978).
The trial court in the absence of agreement between the parties to the divorce action could not, over the objection of the wife, order that her share in the property division be impressed with a trust. Ferguson v. Olmsted, 168 Colo. 374 , 451 P.2d 746 (1969).
Reconsideration of property division to correct error unnecessary absent contest. When neither party contests a trial court's division of property it is not necessary that the court be able to reconsider the property division in order to correct error in the provisions for maintenance and attorney fees. In re Jones, 627 P.2d 248 (Colo. 1981).
Payment of interest on spouse's equity in house. The wife may be required to pay interest on the husband's share of the equity in the house which was awarded to the wife, for the period between the dissolution of marriage and payment of the equity. In re Garcia, 638 P.2d 848 (Colo. App. 1981).
Interest on portion of sale price of marital residence representing husband's share is to be calculated from date specified in decree that payment of such amount become due, not date of sale. In re Schutte, 721 P.2d 160 (Colo. App. 1986).
Transfer is not taxable event. When, under this section, a property settlement agreement is entered into providing for a transfer of property from husband to wife in acknowledgment of the wife's contribution to the accumulation of the marital estate, or a decree of the divorce court requires such transfer because of wife's contributions to the accumulation of the family estate, and the transfer is not made in satisfaction of the husband's obligation for support, the transfer is not a taxable event giving rise to capital gains tax liability for purposes of federal income taxation. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1973), aff'd, 523 F.2d 853 (10th Cir. 1975).
Acts of depletion of marital estate are relevant considerations in making a division of property and not an imputation of marital misconduct on the part of a spouse. In re Paulsen, 677 P.2d 1389 (Colo. App. 1984).
Spouse may be required to apply future earnings against present marital debts. Subsection (2)(c) is not violated solely because the award forces the husband to apply future earnings to retire present debts of the marital estate. In re Faulkner, 652 P.2d 572 (Colo. 1982).
A spouse's contribution to the professional education and career of the other spouse must be considered in the distribution of property pursuant to this section. In re Speirs, 956 P.2d 622 (Colo. App. 1997).
Gift by a third-party donor during the marriage that increases the value of a jointly titled asset is presumably a gift to the marriage. This presumption can only be rebutted by clear and convincing evidence. In re Krejci, 2013 COA 6 , 297 P.3d 1035.
Trial court erred in classifying pre-decree but post-separation student loan debt as wife's separate debt. All debt acquired during a marriage is marital debt. However, classifying student loan debt as marital debt does not preclude court from allocating responsibility for payment of the loan to the party who incurred the loan. Because court's error affects substantial rights, order dividing property must be reversed. Court must consider parties' economic circumstances at the time of remand. In re Morton, 2016 COA 1 , 369 P.3d 800.
B. Definition of Property.
This section does not define "property" but merely specifies that the "marital property" is to be divided "in such proportions as the court deems just". In re Ellis, 36 Colo. App. 234, 538 P.2d 1347 (1975), aff'd, 191 Colo. 317 , 552 P.2d 506 (1976).
The legislature intended the term "property" to be broadly inclusive, as indicated by its use of the qualifying adjective "all" in subsection (2) of this section. In re Graham, 194 Colo. 429 , 574 P.2d 75 (1977).
There are necessary limits upon what may be considered "property", and the concept as used by the general assembly is other than that usually understood to be embodied within the term. In re Graham, 194 Colo. 429 , 574 P.2d 75 (1977).
An insurance policy with no cash surrender value does not represent any asset proper for consideration on the theory that it is "property" which is subject to equitable division between the parties. Menor v. Menor, 154 Colo. 475 , 391 P.2d 473 (1964).
Degree is not property. Where a spouse provides financial support while the other spouse acquires a degree, the degree is not considered property. In re Graham, 194 Colo. 429 , 574 P.2d 75 (1977); In re Olar, 747 P.2d 676 ( Colo. 1987 ).
At best, education is an intangible property right, the value of which, because of its character, cannot have a monetary value placed upon it for division between spouses. In re Graham, 38 Colo. App. 130, 555 P.2d 527 (1976), aff'd, 194 Colo. 429 , 574 P.2d 75 (1978); In re Olar, 747 P.2d 676 ( Colo. 1987 ).
And is not subject to division under this section. Although a litigant's education is a factor to be considered, among many others, in arriving at an equitable property division and in determining matters of maintenance and child support, it is not property subject to division under this section. In re Graham, 38 Colo. App. 130, 555 P.2d 527 (1976), aff'd, 194 Colo. 429 , 574 P.2d 75 (1978); In re Olar, 747 P.2d 676 ( Colo. 1987 ); In re Speirs, 956 P.2d 622 (Colo. App. 1997).
Husband's beneficial interest in discretionary trust is not "property" subject to division as such under this section. In re Rosenblum, 43 Colo. App. 144, 602 P.2d 892 (1979).
Husband's rights in a discretionary trust are to be considered by the court as any other "economic circumstance" of the husband in determining a just division of the marital property pursuant to subsection (1)(c) and as a "relevant factor" in making an award of maintenance under § 14-10-114 (2) . In re Rosenblum, 43 Colo. App. 144, 602 P.2d 892 (1979).
Wife's remainder interest in her grandfather's irrevocable trust was a gift, vested long before her marriage to husband, and was therefore separate property. In re Dale, 87 P.3d 219 (Colo. App. 2003).
Remainder interests in irrevocable trusts are property for purposes of the disposition of property in dissolution actions. Such interests may present only a right to future enjoyment and are subject to complete divestment or defeasance, but they are certain, fixed interests subject only to the condition of survivorship and may not be withheld by the trustee in his or her discretion. Thus, they are distinct from interests in a discretionary or revocable trust, which are viewed as mere expectancies. In re Dale, 87 P.3d 219 (Colo. App. 2003).
Wife's interest in family trust constitutes "property" and is not a "mere expectancy", despite the fact that wife's father must pay the entire net income from the trust to himself during his lifetime and has the discretion to invade the corpus for his own support, care, and maintenance. Because the trust was created during the marriage, wife's interest constitutes a gift that is excepted from the definition of marital property, but appreciation on wife's interest in the trust during the course of the marriage does constitute marital property. In re Balanson, 25 P.3d 28 (Colo. 2001).
Trial court properly determined that any increase in the value of wife's vested remainder interest in an irrevocable trust during the marriage was marital property subject to division under subsection (4). In re Dale, 87 P.3d 219 (Colo. App. 2003).
Court found husband's vested remainder interest in his father's trust to be a property interest, where father possessed the power to revoke the trust during his lifetime but died without exercising that power. Husband's remainder interest in his father's trust was, therefore, subject to depletion only by exercise of the trustee's right to invade the corpus of the trust for the benefit of husband's mother, which right did not convert husband's vested remainder property interest into a mere expectancy. In re Gorman, 36 P.3d 211 (Colo. App. 2001).
Court found husband's vested remainder interest in his mother's trust to be a property interest, even though the mother, still living at the time of the permanent orders, had the power to revoke the trust during her lifetime. The mother's exercise of her right to revoke is a condition subsequent, and unless the event occurs, husband's interest remains vested. In re Gorman, 36 P.3d 211 (Colo. App. 2001).
The legislative history shows that subsection (7)(b) was adopted to overturn the holding in Gorman that a vested remainder interest in a revocable or modifiable trust is a property interest subject to division. The legislative history reveals that the general assembly relied upon the plain meaning of "heir at law" and that the statute applies only to remainder interests in trusts that are revocable or amendable and not to remainder interests in irrevocable trusts. In re Dale, 87 P.3d 219 (Colo. App. 2003).
The term "heir at law" in subsection (7)(b) pertains to any interest or resource a spouse may expect to inherit from his or her parent were the parent to die intestate. As a practical consequence of that language, the trial court may not consider any such prospective inheritance as either a property interest or as an economic circumstance. By including the phrase "heir at law," the statute thus treats intestate expectancies consistently with interests under a donative third-party instrument that can be revoked or changed. In re Dale, 87 P.3d 219 (Colo. App. 2003).
Interest in a trust cannot be classified as property until that trust becomes irrevocable under subsection (7)(b). In re Balanson, 107 P.3d 1037 (Colo. App. 2004).
A life insurance policy lacking cash surrender value is not "property" since it has not objective, tangible, or vested value that can be divided. McGovern v. Broadstreet, 720 P.2d 589 (Colo. App. 1985).
Discretionary trust corpus cannot be considered the separate property of a beneficiary for purposes of division of property. This is because the beneficiary of such trust has no contractual or enforceable right to income or principal from the trust, cannot force any action by the trustee, cannot assign an interest in the trust, and because such interest cannot be reached by either party's creditors. In re Jones, 812 P.2d 1152 (Colo. 1991).
When beneficiary has no interest in the corpus, and right to control how the corpus is invested, the income is a mere gratuity deriving from the beneficence of the settlors. In re Guinn, 93 P.3d 568 (Colo. App. 2004).
In the absence of some ownership interest in the corpus itself, even a mandatory right to unrealized future discretionary allocations of income is an expectancy arising from the largess of the settlors and does not constitute property. In re Guinn, 93 P.3d 568 (Colo. App. 2004).
Income received by the wife from the discretionary trust during the marriage is properly considered a gift and thus not divisible pursuant to subsection (2)(a). In re Jones, 812 P.2d 1152 (Colo. 1991).
Wife's expectancy interest in a discretionary trust should be considered an economic circumstance pursuant to subsection (1)(c). In re Jones, 812 P.2d 1152 (Colo. 1991).
Wife's future anticipated interest in German "social security" benefits is an economic circumstance that can be considered pursuant to subsection (1)(c) in the equitable division of the marital estate. In re Lockwood, 971 P.2d 264 (Colo. App. 1998).
Trial court did not err in concluding that an irrevocable trust of which wife was beneficiary but over which wife had no control over the principal or the income and from which wife had no right to demand or request distributions was not marital property but an "economic circumstance" to be considered in arriving at an equitable property division. In re Pooley, 996 P.2d 230 (Colo. App. 1998).
Vested and matured military retirement pay accrued during all or part of a marriage constitutes marital property subject to equitable distribution in a marriage proceeding. In re Gallo, 752 P.2d 47 (Colo. 1988).
The key to an equitable distribution is fairness, not mathematical precision. Two possible methods of valuation are the present cash value method and the reserve jurisdiction method. In re Gallo, 752 P.2d 47 (Colo. 1988).
The rule that military retirement pay is marital property subject to equitable distribution in a marriage proceeding should be applied prospectively only. In re Wolford, 789 P.2d 459 (Colo. App. 1989).
Trial court, which had personal jurisdiction over husband but lacked the authority to divide the husband's military pension as marital property, did not retain jurisdiction to divide the pension at a later date. Even though final decree provided that trial court had continuing jurisdiction over the action and that the wife would remain entitled to any and all military benefits, the court did not have the authority to divide military pension as a result of subsequent case law declaring such pensions to be marital property. Language in final decree refers only to the court's continuing authority to divide property as such court had on the date of the final decree. In re Booker, 833 P.2d 734 (Colo. 1992).
Federal act specifying whether the court has jurisdiction over a military member's pension preempts state rules of procedure governing jurisdiction. In re Booker, 833 P.2d 734 (Colo. 1992).
Military retirement benefits subject to distribution as marital property in dissolution of marriage cases are limited to disposable retired pay which, under federal law, excludes disability pay. The exclusion also applies to that portion of a veteran's retirement pay that is computed using the percentage of disability on the date the veteran is placed on the temporary disability retirement list (TDRL). In re Williamson, 205 P.3d 538 (Colo. App. 2009).
Because husband was not entitled to a longevity retirement at the time he was placed on the TDRL, no portion of his retirement benefit that is based upon his disability status is distributable to wife pursuant to the parties' separation agreement that required the parties to divide the husband's pension equally according to the time rule formula. In re Williamson, 205 P.3d 538 (Colo. App. 2009).
In case where service member had attained twenty or more years of service and was eligible for a longevity retirement when placed on the TDRL, an amount equal to the amount of TDRL pay, as calculated based on husband's percentage of disability when he was placed on the TDRL, must be excluded from the marital property. Any amounts in excess of that amount may be divided as marital property. In re Poland, 264 P.3d 647 (Colo. App. 2011).
Trial court did not err in its conclusion that military voluntary separation incentive payments constitute marital property subject to distribution. Compensation that is deferred until after the dissolution of marriage, but fully earned during the marriage, is marital property. In re Shevlin, 903 P.2d 1227 (Colo. App. 1995).
Cash received during the marriage pursuant to an employment contract which provides for payments in installments in advance of work is cash on hand and therefore marital property subject to division and not future income. In re Anderson, 811 P.2d 419 (Colo. App. 1990).
Compensation deferred until after the dissolution, but earned fully during the marriage, is marital property. Wife's performance award for her performance as an employee during the marriage was marital property, subject to equitable division. In re Huston, 967 P.2d 181 (Colo. App. 1998).
Although the interest of the policy owner of a life insurance policy constitutes marital property, the interest of the named beneficiary is only an expectancy and vests no present property interest in the beneficiary. Gorman-English v. Estate of English, 849 P.2d 840 (Colo. App. 1992).
A life insurance policy lacking cash surrender value is not "property" since it has no objective, tangible, or vested value that can be divided in a dissolution action. In re Foottit, 903 P.2d 1209 (Colo. App. 1995).
Spouse's disability pension payments do not constitute marital property and are not subject to distribution in a dissolution of marriage action. Such a distribution would contravene the legislative intent that only the beneficiary receive the disability benefits. In re Peterson, 870 P.2d 630 (Colo. App. 1994).
However, income received during the marriage from disability benefits becomes a marital asset when it is commingled with marital funds. Disability payments themselves are not marital property, but they lose their exempt character when commingled with marital assets. In re Green, 169 P.3d 202 (Colo. App. 2007).
Public employees' retirement association (PERA) disability benefit prior to age 65 replaces future earnings and does not constitute marital property. In re Hansen, 62 P.3d 1066 (Colo. App. 2002).
When disabled employee reaches the age of 65, the portion of PERA benefits attributable to years of service before disability constitutes marital property, and the balance remains separate property. Regardless of employee's recovery or work status, the benefits, excluding the unearned service credit projected until age 65, are more akin to retirement benefits. In re Hansen, 62 P.3d 1066 (Colo. App. 2002).
A stock option that is not vested does not constitute property. Only a vested stock option is "property" subjection to a determination of whether it was granted in consideration of past or future services for purpose of ascertaining its marital or separate nature. In re Huston, 967 P.2d 181 (Colo. App. 1998).
Employee stock option constitutes property for purposes of dissolution only when employee has enforceable right to options. Whether the stock option is "vested" is not determinative. When an employee has a presently enforceable right under the contract, the stock option is property and not a mere expectancy, regardless of whether the options are presently exercisable. In re Powell, 220 P.3d 952 (Colo. App. 2009).
Parents' promise to give property to husband in their will does not make the property marital property. Any interest in a donative third-party instrument that is amendable or revocable, is not marital property subject to division. In re Schmedeman, 190 P.3d 788 (Colo. App. 2008).
Wife's objection to husband's valid gift of property during the marriage, absent evidence that gift was made in contemplation of divorce, did not preserve wife's right to have property classified as marital property upon dissolution. Classification and valuation of marital property takes place upon dissolution. Absent dissipation, "marital" property that no longer exists cannot be valued. In re Schmedeman, 190 P.3d 788 (Colo. App. 2008).
Gifts made from one spouse to the other during the course of the marriage cannot be presumed to be gifts, nor do they necessarily constitute marital property. To qualify as a "gift", a transfer of property must involve a simultaneous intention to make a gift, delivery of the gift, and acceptance of the gift. In re Balanson, 25 P.3d 28 ( Colo. 2001 ); In re Amich, 192 P.3d 422 (Colo. App. 2007).
Accrued vacation and sick leave is marital property where employee spouse has an enforceable right to be paid for the leave. Where the value of the leave at the time of dissolution can be reasonably ascertained, it is subject to equitable division under the UDMA. Where the value of such leave cannot be reasonably ascertained, the court should consider the employee spouse's right to the leave as an economic circumstance of the parties when equitably dividing the marital estate. In re Cardona, 2014 CO 3, 316 P.3d 626.
In dissolution proceedings, a couple's cryogenically frozen pre-embryos constitute marital property of a special character. In re Rooks, 2018 CO 85, 429 P.3d 579.
In determining the disposition of pre-embryos, the court should first look to any existing agreement between the parties regarding the disposition of their remaining pre-embryos in the event of divorce. In the absence of any such agreement, the court should balance the parties' interests by considering the following: (1) how the party who wishes to preserve the pre-embryos intends to use them; (2) the demonstrated physical ability or inability of the party seeking to use the pre-embryos for in vitro fertilization (IVF) to have biological children through other means; (3) the parties' original reasons for undertaking IVF; (4) the potential hardship on the party that wishes to avoid becoming a genetic parent, including emotional, financial, or logistical factors; (5) either party's demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in divorce proceedings; and (6) other factors relevant to the parties' specific situation. The court should not consider: (1) the ability of the party seeking to use the pre-embryos to afford a child; (2) standing alone, the number of a party's existing children; and (3) the ability of the party seeking to use the pre-embryos to adopt or otherwise parent non-biological children. In re Rooks, 2018 CO 85, 429 P.3d 579.
C. Discretion of Court.
The division of property in a divorce action is a matter within the sound discretion of the trial court, and its judgment will not be disturbed on review unless it is shown that the division made was an abuse of discretion. Granato v. Granato, 130 Colo. 439 , 277 P.2d 236 (1954); Todd v. Todd, 133 Colo. 1 , 291 P.2d 386 (1955); Britt v. Britt, 137 Colo. 524 , 328 P.2d 947 (1958); Drake v. Drake, 138 Colo. 388 , 33 P.2d 1038 (1959); Bell v. Bell, 150 Colo. 1 74 , 371 P.2d 773 (1962); Cohan v. Cohan, 150 Colo. 249 , 372 P.2d 149 (1962); Harvey v. Harvey, 150 Colo. 449 , 373 P.2d 304 (1962); Liggett v. Liggett, 152 Colo. 110 , 380 P.2d 673 (1963); Bell v. Bell, 156 Colo. 513 , 400 P.2d 440 (1965); Larrick v. Larrick, 30 Colo. App. 327, 491 P.2d 1401 (1971); Carlson v. Carlson, 178 Colo. 283 , 497 P.2d 1006 (1972); Jekot v. Jekot, 32 Colo. App. 118, 507 P.2d 473 (1973); Rayer v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973); In re Armbeck, 33 Colo. App. 260, 518 P.2d 300 (1974); Harrod v. Harrod, 34 Colo. App. 172, 526 P.2d 666 (1974); In re Icke, 35 Colo. App. 60, 530 P.2d 1001 (1974), aff'd, 189 Colo. 319 , 540 P.2d 1076 (1975); Moss v. Moss, 190 Colo. 491 , 549 P.2d 404 (1976); In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977); In re Carruthers, 40 Colo. App. 278, 577 P.2d 773 (1977); In re Schulke, 40 Colo. App. 473, 579 P.2d 90, cert. denied, 439 U.S. 861, 99 S. Ct. 181, 56 L. Ed. 2d 170 (1978); In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979); In re Garcia, 638 P.2d 848 (Colo. App. 1981); In re Hoffman, 650 P.2d 1344 (Colo. App. 1982); In re Faulkner, 652 P.2d 572 ( Colo. 1982 ); In re Mann, 655 P.2d 814 ( Colo. 1982 ); In re Lester, 647 P.2d 668 (Colo. App. 1982); In re Seely, 689 P.2d 1154 (Colo. App. 1984); In re Sarvis, 695 P.2d 772 (Colo. App. 1984); In re Hulse, 727 P.2d 876 (Colo. App. 1986); In re Price, 727 P.2d 1073 ( Colo. 1986 ); In re McGinnis, 778 P.2d 281 (Colo. App. 1989); In re Stumpf, 932 P.2d 845 (Colo. App. 1996); In re Dale, 87 P.3d 219 (Colo. App. 2003).
The division of marital property is committed to the sound discretion of the trial court and there is no rigid mathematical formula that the court must adhere to. In re Graham, 194 Colo. 429 , 574 P.2d 75 (1977).
Judiciary not to interfere with "division" of property. Whatever the role of judicial solicitude in the division of property, it will not be permitted to interfere with the statutory command that the property be literally and effectively "divided". In re Gehret, 41 Colo. App. 162, 580 P.2d 1275 (1978).
Property division hearings are equitable in nature and trial courts have broad discretion to fashion an equitable division of the parties' property in a dissolution proceeding. In re Wells, 850 P.2d 694 (Colo. 1993).
Under the authority of this section, the trial court is clearly limited in adjusting and dividing the assets of the husband and wife as between them alone. Giambrocco v. Giambrocco, 161 Colo. 510 , 423 P.2d 328 (1967).
Trial court lacks authority to award marital property to the children of the marriage or to compel a parent to make such a conveyance. In re Mohrlang, 85 P.3d 561 (Colo. App. 2003).
Under this section authorizing a "division of property" in a divorce action, the court may decree a transfer from the wife to the husband, in a proper case, even of property which he has conveyed to her. Ikeler v. Ikeler, 84 Colo. 429, 271 P. 193 (1928).
It was proper for the trial court to consider contributions of parties to the increase in or accumulation of assets by means other than direct contribution of capital. Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971).
Where the parties to a divorce action agreed to submit the partition of real property issue to the court, rather than incur the expense of a formal statutory partition proceeding, the court, under its broad powers, could have declined to partition at that point, and, in the absence of a final agreement concerning the property, it could either have sold the property and divided the proceeds, or it could have declared that each party would henceforth be a tenant in common. Either course would have been a fair and equitable division of the property. Jekot v. Jekot, 32 Colo. App. 118, 507 P.2d 473 (1973).
Judicial notice of general economic trends, such as the inflationary trend since the time of the marriage, was proper in considering the disposition of property. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).
A decree of a trial court permitting a wife to keep her separate inherited property and awarding her a division of property acquired through the joint efforts of the parties, where no alimony is requested or awarded, does not constitute an abuse of discretion. Green v. Green, 139 Colo. 551 , 342 P.2d 659 (1959).
Where stocks and securities acquired solely by a defendant's mother out of her inheritance, and earnings were held in joint tenancy with defendant, it was error for the trial court to allot one half of the value thereof to defendant in making a division of property as between husband and wife. Stephenson v. Stephenson, 134 Colo. 96 , 299 P.2d 1095 (1956).
Non-marital disability pension payments may be considered as an economic circumstance in determining maintenance. In re Peterson, 870 P.2d 630 (Colo. App. 1994).
In a property settlement proceedings in a divorce action, where the evidence disclosed that the wife had contributed substantially to the family income over a period of years, which enabled the husband to devote virtually all of his earnings to assisting his mother in preserving a valuable piece of business property, through whom he received a substantial inheritance, which he would not have received but for the wife's efforts and contributions during the period, it was error for the court to fail to take such inheritance into consideration in determining the property settlement between the parties. Lee v. Lee, 133 Colo. 128 , 293 P.2d 293 (1956).
A court order empowering the wife to make the selection of the husband's stocks was erroneous because the division is a function requiring the exercise of judicial discretion, and the danger in delegating full discretion to the wife was that her selection could work to an unfair advantage for her and a decided detriment to the husband's holdings. Santilli v. Santilli, 169 Colo. 49 , 453 P.2d 606 (1969).
Where properties awarded to the husband were heavily encumbered, and the businesses awarded financially involved, and in addition he was required to pay off a large indebtedness on property awarded to wife plus substantial support for children, evidence offered was insufficient to support such burdensome order. Bell v. Bell, 150 Colo. 174 , 371 P.2d 773 (1962).
Where under facts disclosed, order of division of property in divorce action was so manifestly unfair, inequitable, and unconscionable as to amount to an abuse of discretion, it will be ordered vacated and set aside. Bell v. Bell, 150 Colo. 174 , 371 P.2d 773 (1962).
No abuse of discretion. In and of itself, the award of 35 percent of the marital assets is not an abuse of discretion. In re Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975).
And although distribution was not equal, it certainly was equitable, and thus well within the court's discretion. In re Gercken, 706 P.2d 809 (Colo. App. 1985).
Award of interest within trial court's discretion. Whether interest should be allowed on a promissory note which represents a property division award upon dissolution of marriage is a matter which lies within the discretion of the trial court based on all of attendant circumstances. In re Lucas, 631 P.2d 1175 (Colo. App. 1981).
Trial court is required to consider the economic circumstances of the spouses at the time of any hearing relating to the division of marital property. In re Wells, 850 P.2d 694 (Colo. 1993).
Marital partnership interest made subject to "charging order" pursuant to § 7-60-128 as part of property division is not an abuse of discretion, nor was it error to leave the actual amount recoverable to determination in a separate action, although property division had to be set aside because it could be unconscionable. In re Weiss, 695 P.2d 778 (Colo. App. 1984).
Where a wife was awarded a final divorce decree without alimony and given control of a jointly owned taxicab business, it was held that there was ample evidence in the record to support the finding of fact by the trial court that wife did contribute to and was entitled to a one-half interest in the business since it appeared that the operations, continued under her guidance and later under a receiver with her assistance, owed their successful outcome to these efforts. Shreyer v. Shreyer, 112 Colo. 281 , 148 P.2d 1003 (1944).
Award of a share of benefits of husband's vested pension plan through the use of installment payments when lump-sum distribution at the time of decree was impractical is within the discretion of court. In re Blake, 807 P.2d 1211 (Colo. App. 1990).
Trial court's use of two different methods to distribute the parties' two pensions, was within the sound discretion of the trial court. In re Kelm, 912 P.2d 545 (Colo. 1996).
The trial court did not abuse its discretion in awarding the property and the proceeds therefrom to plaintiff where evidence showed that he furnished substantially all the purchase money, but allowed title to be taken in his wife's name. Bieber v. Bieber, 112 Colo. 229 , 148 P.2d 369 (1944).
Where the husband asserted the court abused its discretion in awarding the real property to the wife without having first determined its value, there was no abuse of discretion, because before value becomes important the court must first determine whether the property is subject to division. Larrabee v. Larrabee, 31 Colo. App. 493, 504 P.2d 358 (1972).
Where the husband was on active duty as a petty officer in the Navy during the five year duration of the marriage, and the court found that his participation, if any, in the management of the land given to the wife prior to the marriage was adequately compensated by the income received therefrom, and the court further found that the gift from the wife's mother was intended primarily as a gift to her own children and that the husband was not entitled to retain any interest in the land under the circumstances of this case, the award of the property to the wife, based on these findings was not an abuse of discretion. Larrabee v. Larrabee, 31 Colo. App. 493, 504 P.2d 358 (1972).
Court abused its discretion when it acknowledged the parties' relatively equal contributions to the marriage and marital property, yet awarded the wife only the benefits of the increased value of the property without any responsibilities for its burdens. Under these circumstances, equity requires that the wife share a part of the debt incurred on the home during the marriage as well as a part of the increase in the home's value. In re Kiefer, 738 P.2d 54 (Colo. App. 1987).
It was an abuse of discretion to give the wife ownership of the couple's percentage of a partnership, granting one-third to the husband only upon full or partial distribution and holding the husband responsible for payment of his share of capital calls and any debt related to the partnership interest. In re Paul, 821 P.2d 925 (Colo. App. 1991).
Once initial order is entered, subsequent hearings are not merely corrections of errors committed by the trial court in the first proceeding. In re Wells, 850 P.2d 694 (Colo. 1993).
D. Antenuptial Agreements.
Separation agreements and antenuptial agreements are separate and distinct legal documents. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev'd in part on other grounds, 653 P.2d 728 ( Colo. 1982 ).
Antenuptial contracts may be rescinded or modified by the mutual consent of the parties and whether such a contract has been rescinded by mutual consent is a question of fact. In re Young, 682 P.2d 1233 (Colo. App. 1984).
Spouses-to-be have right to enter into antenuptial agreements which contemplate the possibility of dissolution. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev'd in part on other grounds, 653 P.2d 728 ( Colo. 1982 ).
Agreement not bar to claim for maintenance unless expressly relinquished. In the absence of any reference in an antenuptial agreement to a relinquishment of the right to maintenance, the agreement does not bar the wife's claim for maintenance. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).
As a general principle, antenuptial agreements will be given effect in this state. In re Thompson, 39 Colo. App. 400, 568 P.2d 98 (1977).
Antenuptial agreements, as a matter of law, do not violate public policy and are not void ab initio in Colorado. In re Newman, 653 P.2d 728 ( Colo. 1982 ).
Antenuptial agreements, absent fraud, are binding on the parties according to their terms, and the judiciary cannot relieve the parties from the obligations thereof. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).
Otherwise legislative provisions control. When an antenuptial agreement does not provide for the distribution of marital property upon the dissolution of the marriage, then the applicable legislative provisions are controlling. In re Thompson, 39 Colo. App. 400, 568 P.2d 98 (1977).
Section 14-10-112 conscionability review not extended to antenuptial agreements. The conscionability review of separation agreements, pursuant to § 14-10-112, does not extend to antenuptial agreements. In re Newman, 653 P.2d 728 (Colo. 1982).
Burden of proof is on party seeking to avoid antenuptial contract. In re Ingels, 42 Colo. App. 245, 596 P.2d 1211 (1979); In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).
The burden of proving failure to disclose is upon the party contesting the validity of the antenuptial agreement. In re Ross, 670 P.2d 26 (Colo. App. 1983).
Failure to provide wife with independent counsel does not render antenuptial agreement void per se. In re Ingels, 42 Colo. App. 245, 596 P.2d 1211 (1979).
Agreement not set aside solely because bulk of marital assets go to husband. In re Ingels, 42 Colo. App. 245, 596 P.2d 1211 (1979).
Itemized property list not necessary for agreement. Where the amount of the husband's assets was not materially misstated, his failure to supply an itemized list was not fatal to the validity of an antenuptial agreement. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).
While it would have been preferable for the trial court to have entered specific values for each item in a property division, reversal was not required where it could determine that the property division made was not an abuse of discretion. In re Warrington, 44 Colo. App. 294, 616 P.2d 177 (1980).
Where antenuptial agreement is unambiguous as to treatment of increases in value of separate property, the court is required to enforce the agreement according to its terms. In re Vickers, 686 P.2d 1370 (Colo. App. 1984).
Where antenuptial agreement was silent on matter of attorney fees, the awarding of such fees was controlled by § 14-10-119 . In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev'd in part on other grounds, 653 P.2d 728 ( Colo. 1982 ).
For holding as to enforceability of prenuptial agreement which conceived disposition of property, see Franks v. Wilson, 369 F. Supp. 304 (D. Colo. 1973), appeal dismissed, 415 U.S. 986, 94 S. Ct. 1583, 39 L. Ed. 2d 884, reh'g denied, 416 U.S. 975, 94 S. Ct. 2004, 40 L. Ed. 2d 565 (1974).
E. Separate Property.
Property must be classified as separate or marital. Under the requirements of this section, it is essential for the court to classify the property of the parties as either separate or marital. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).
This section mandates that separate property remain separate, subject to the narrow exception that any increase in value during marriage is marital property. In re Campbell, 43 Colo. App. 72, 599 P.2d 275 (1979).
Property acquired by either spouse during the marriage is presumed marital as is the appreciation in the value of separate property and any income produced by separate assets during the marriage. In re Dale, 87 P.3d 219 (Colo. App. 2003).
However, the marital property presumption can be overcome by evidence establishing that the property in question was acquired by a method listed in subsection (2), which excludes, among other things, property from the marital estate that was acquired in exchange for premarital property. To claim separate ownership successfully under the exchange provision, a spouse must trace the property by proving a series of exchanges back to an original asset. In re Dale, 87 P.3d 219 (Colo. App. 2003).
Court must determine the separate properties' appreciation in value and the part of the increase that is marital property and take those values into consideration when determining the property division. In re Martinez, 77 P.3d 827 (Colo. App. 2003).
In order to obtain status of separate property under this section, it must appear that the property was acquired prior to marriage with the intent that it become the separate property of husband. In re Altman, 35 Colo. App. 183, 530 P.2d 1012 (1974).
Property not "separate" because of spouse's lack of interest or concern. Property titled in the name of one spouse that was acquired during the parties' marriage cannot be considered nonmarital property merely because of a course of conduct by the other spouse showing a lack of interest or concern for property. In re Heim, 43 Colo. App. 511, 605 P.2d 485 (1979).
The classification of increases in separate property as marital property is a substantial departure from prior law wherein such increases were generally classed as separate property. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).
When award of increases in separate property to be made. The award of increases in separate property is to be made after considering all of the factors stated in subsection (1)(a) through (1)(d), and not just contribution. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977); In re Seewald, 22 P.3d 580 (Colo. App. 2001).
It is proper for a court to consider the depletion of separate property for marital purposes pursuant to subsection (1)(d); however, the statute does not require that the depletion of separate property for nonmarital purposes be considered and the trial court's failure to make findings as to this factor was harmless error. In re Burford, 26 P.3d 550 (Colo. App. 2001).
Where court without authority to order sale of home. Where home was separate property of husband before marriage and after dissolution of marriage, the court was without authority to order sale of home despite fact that increase in the value of home during marriage was marital property. In re Campbell, 43 Colo. App. 72, 599 P.2d 275 (1979).
Income received by a spouse that is generated from the property of a third party is not marital property. In re Guinn, 93 P.3d 568 (Colo. App. 2004).
Money accumulated in pension fund prior to marriage should be considered "separate property". In re Rogers, 709 P.2d 1383 (Colo. App. 1985).
Husband's worker's compensation settlement is separate property to the extent it compensates for post-dissolution loss of income or earning capacity. In re Breckenridge, 973 P.2d 1290 (Colo. App. 1999).
Insurance proceeds acquired by husband during marriage constituted a gift and was properly classified as separate property. In re Sharp, 823 P.2d 1387 (Colo. App. 1991).
Shares of stock owned by husband at the time of the marriage that were later involved in a stock split during the marriage were properly considered husband's separate property except to the extent the shares appreciated during the marriage. In re Renier, 854 P.2d 1382 (Colo. App. 1993).
In order for premarital property to retain its separate character, the property must be traceable to specific assets. In the absence of evidence tracing shares of stock obtained in a stock split during the marriage to the shares husband owned at the time of the marriage, the additional shares should not have been set apart as husband's separate property where husband combined the additional shares with other shares acquired during the marriage and many of the combined shares were sold. In re Renier, 854 P.2d 1382 (Colo. App. 1993).
Trial court did not abuse its discretion when it awarded the wife 50 percent of the husband's disposable retirement pay where the ruling was rationally based on considerations of the wife's marital contributions during the husband's military career and the fact that the wife had no survivor benefits in the event of the husband's death. In re Sinkovich, 830 P.2d 1101 (Colo. App. 1992).
Trial court erred in setting apart to wife as her separate property the portions of investment traceable to income generated from trust. In re Foottit, 903 P.2d 1209 (Colo. App. 1995).
Requiring a party to execute a noncompete agreement is within court's authority where agreement is necessary to protect goodwill of business awarded to other party and agreement is otherwise valid under § 8-2-113. In re Fischer, 834 P.2d 270 (Colo. App. 1992).
Gifts made from one spouse to the other during the course of the marriage cannot be presumed to be gifts, nor do they necessarily constitute marital property. To qualify as a "gift", a transfer of property must involve a simultaneous intention to make a gift, delivery of the gift, and acceptance of the gift. In re Balanson, 25 P.3d 28 ( Colo. 2001 ); In re Amich, 192 P.3d 422 (Colo. App. 2007).
To qualify as a gift, a transfer of property must involve a simultaneous intention to make a gift, delivery of the gift, and acceptance of the gift. That determination hinges fundamentally on the intent and acts of the donor and recipient, which, in turn, are questions of fact for the trial court to resolve. In re Dale, 87 P.3d 219 (Colo. App. 2003).
Finding that home and car were wife's separate property upheld. In re Bartolo, 971 P.2d 699 (Colo. App. 1998).
The portion of husband's railroad retirement benefits that are equivalent to those an employee would have received if covered by the Social Security Act was husband's separate property, not subject to division, and court erred in treating it as marital property along with the portion of the railroad retirement benefits that are supplemental annuities. In re Zappanti, 80 P.3d 889 (Colo. App. 2003).
Bailment allowed between spouses. Subsection (1) does not prohibit a court from assigning liability to one spouse for the loss of separate property belonging to the other spouse upon a finding of negligence on the part of the spouse in possession of the property. In re Amich, 192 P.3d 422 (Colo. App. 2007).
Separate property pledged as collateral does not become marital property. The parties secured a line of credit for marital purposes using husband's separate property. Loan payments were made when due; the husband and wife did not default; and the lender did not foreclose on the property to satisfy the debt. In re Corak, 2014 COA 147 , 412 P.3d 642.
F. Marital Property.
The purpose of the division of marital property is to allocate to each spouse what equitably belongs to him or her. In re Graham, 194 Colo. 429 , 574 P.2d 75 (1977).
Weighing of factors set forth in this section is within the sound discretion of the trial court. In re Casias, 962 P.2d 999 (Colo. App. 1998).
The court had the discretion to enter an equitable division of property where the court had retained jurisdiction and a period had expired for meeting certain conditions set forth in an agreement between the parties and such conditions had not been met. In re Ebel, 874 P.2d 406 (Colo. App. 1993).
State courts are preempted from crafting equitable remedies to reimburse a former spouse for payments she otherwise would have received from the division of a veteran's military retirement pay. The federal Uniformed Services Former Spouses' Protection Act does not allow disability retirement benefits to be divided as marital property, and former husband's military retirement consisted only of disability retirement benefits. In re Tozer, 2017 COA 151 , 410 P.3d 835.
Division gives each party some attributes of ownership. The efficacy of a division of property in a dissolution of marriage action results from placing in the hands of each party a definable or ascertainable portion of at least some of the attributes of ownership. In re Cehret, 41 Colo. App. 162, 580 P.2d 1275 (1978).
Right to property division inchoate. In dissolution of marriage proceedings, a wife may be entitled to a division of the husband's property, and that right, prior to the dissolution action and possibly subject to an exception or two, is completely inchoate. In re Questions Submitted by United States Dist. Court, 184 Colo. 1 , 517 P.2d 1331 (1974).
Property to be transferred is not determined at time of filing. At the time of the filing of the dissolution of marriage action in which the division of property will be later determined, a vesting takes place, and this interest which has vested is inchoate only in the sense that, prior to the division, the property to be transferred to the wife has not yet been determined. In re Questions Submitted by United States Dist. Court, 184 Colo. 1 , 517 P.2d 1331 (1974).
At time divorce action is filed there vests in wife her interest in property in name of husband. In re Questions Submitted by United States Dist. Court, 184 Colo. 1 , 517 P.2d 1331 (1974).
Justice requires that the joint accumulations of a husband and wife, or property which was acquired during marriage or added to through the joint efforts of both spouses, should be considered for equitable division on termination of the marriage. Kalcevic v. Kalcevic, 156 Colo. 151 , 397 P.2d 483 (1964).
Specific circumstances and feelings of each party are appropriate considerations in determining which specific items of property should be sold, or alternatively, distributed to a particular party. In re Woodrum, 618 P.2d 732 (Colo. App. 1980).
Highly relevant factor to be considered by court in effecting just division of marital property is the extent to which the division will promote the objective of providing for each party's financial needs without maintenance. In re Jones, 627 P.2d 248 (Colo. 1981).
Value of separate property considered. The court must consider all of the many relevant facets of the situation of the parties, including the value of property set apart to each spouse. In re Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975).
Upon remand to redistribute marital property, trial court may consider the economic circumstances of each spouse. In re Wells, 850 P.2d 694 (Colo. 1993).
Award of additional $6,000 for "recreational opportunities" for children was fairly embraced within the factors to be considered by court in dividing the marital property and did not create a separate "recreational fund" for the needs of the children. In re Jackson, 698 P.2d 1347 (Colo. 1985).
Contribution of spouse to acquisition of specific property is not a factor to be considered in determining whether that property is part of the marital estate, but this may be considered in determining the shares allocated to each spouse. In re Carruthers, 40 Colo. App. 278, 577 P.2d 773 (1977).
Decrease in value of separate property. Under subsection (1)(d), the court may consider as a relevant factor in dividing marital property the decrease in the value of separate property. In re Talarico, 36 Colo. App. 389, 540 P.2d 1147 (1975).
When applying subsection (1)(d), the court must consider an increase in the value of separate property without reference to the fact that the increase has just previously been classified as marital property under subsection (4). The trial court did not err in finding that there was an increase in the value of the husband's separate property during the marriage despite the fact that there was an aggregate decrease in the value of such property. In re Burford, 26 P.3d 550 (Colo. App. 2001).
Value of retirement account considered. The public employees' retirement association's interest of the husband or his estate is not subject to divestment by death or discharge. At some time, he or his estate must receive, at the very minimum, the amount of accumulated deductions in his individual account. His rights have a presently determinable cash surrender value equal to his salary deductions which otherwise would have been available for the use of the parties during the marriage. Even though the husband's interest in the fund is, by its very nature, incapable of division in kind, the value of that interest was properly taken into account in a marital property division. In re Pope, 37 Colo. App. 237, 544 P.2d 639 (1975).
Because a 401(k) account is a defined contribution plan, the court must determine the marital interest; but unlike a defined benefit plan, it need not consider future appreciation. In re Casias, 962 P.2d 999 (Colo. App. 1998).
When one spouse causes title to be placed jointly with the other spouse, a gift is presumed, and the burden to show otherwise is upon the donor. In re Moncrief v. Moncrief, 36 Colo. App. 140, 535 P.2d 1137 (1975).
Transfer during the marriage by one spouse to both spouses is understood to evidence a transfer to the marital estate in the absence of appropriate evidence that the property was excluded from being marital property by a valid agreement of the parties. The exception from the definition of marital property for any property acquired by gift does not apply to such transfer. In re Stumpf, 932 P.2d 845 (Colo. App. 1996).
Gift by a third-party donor during the marriage that increases the value of a jointly titled asset is presumably a gift to the marriage. This presumption can only be rebutted by clear and convincing evidence. In re Krejci, 2013 COA 6 , 297 P.3d 1035.
Where separation agreement has been set aside, property transferred in accordance with the agreement was not excluded from the division of the marital property. In re Bisque, 31 P.3d 175 (Colo. App. 2001).
Presumption of gift not overcome. Parties' explanation that title to their home was placed in joint tenancy so as to avoid inheritance taxes does not overcome the presumption that a gift occurred; it merely expresses a reason why the gift was made. In re Moncrief v. Moncrief, 36 Colo. App. 140, 535 P.2d 1137 (1975).
Resembles division of property by co-owners rather than conveyance. Transfer of property by husband to his former wife in fulfillment of a property settlement agreement entered into by the parties and approved by the court granting the divorce is a recognition of a "species of common ownership" of the marital estate by the wife resembling a division of property between co-owners and is not a transfer which resembles a conveyance by the husband for the release of an independent obligation owed by him to the wife. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1 973 ), aff'd, 523 F.2d 853 (10th Cir. 1975); In re Questions Submitted by United States Dist. Court, 184 Colo. 1 , 517 P.2d 1331 (1974).
Property acquired before legal separation deemed marital. Property acquired subsequent to a marriage but after the parties have separated without a decree of legal separation is not excepted from "marital property" by subsection (2). In re Carruthers, 40 Colo. App. 278, 577 P.2d 773 (1977); In re Huff, 834 P.2d 244 ( Colo. 1992 ).
Where parties lived apart for over eleven years without a decree of legal separation or a valid agreement for exclusion of property, property acquired during that period was marital property. In re Huff, 834 P.2d 244 (Colo. 1992).
The presumption that property acquired by either spouse after marriage is marital property may be overcome by establishing that the property in question was acquired by a method listed in subsection (2). Assets not falling with the specific definition of separate property are deemed to be marital in nature subject to equitable division by the court. In re McCadam, 910 P.2d 98 (Colo. App. 1995); In re Seewald, 22 P.3d 580 (Colo. App. 2001).
Marital agreements must be in writing and signed by both parties. Although subsection (2)(d) does not require a "valid agreement" to be in writing, the more specific language of the Uniform Premarital and Marital Agreement Act prevails over the general language in this section. Therefore, parties' oral agreement during marriage to exclude the parties' respective retirement accounts and inheritances from the marital estate was not a valid agreement. In re Zander, 2019 COA 149 , __ P.3d __.
Where a spouse takes title to property under circumstances that give rise to a resulting trust, that property has not been "acquired" for purposes of subsection (3), and, therefore, the trust property is not part of the marital estate. In re Martinez, 77 P.3d 827 (Colo. App. 2003).
Appreciation of separate property during the course of the marriage is considered marital property and such increase is subject to division under conditions set forth in this section. In re Fleet, 701 P.2d 1245 (Colo. App. 1985).
Appreciation accrued during period of reconciliation to be shared. The husband is entitled to an equitable share in the total amount of appreciation that accrued during a period of reconciliation after the wife became sole owner of the family home. In re Reeser, 635 P.2d 930 (Colo. App. 1981).
Where trial court failed to determine if there had been commingling of husband's premarital assets or if any marital appreciation in any of the trust assets had occurred and should have been included in the estate, property division could not be evaluated to determine whether it was inequitable. In re Seewald, 22 P.3d 580 (Colo. App. 2001).
Value of marital property sold by a spouse prior to filing of divorce action where spouse kept proceeds for himself is properly considered in dividing marital estate. In re Paulsen, 677 P.2d 1389 (Colo. App. 1984).
Partnership property divided according to spouse's contribution. A trial court's division of partnership property can be based upon the contribution made by each party to the purchase of the property. In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979).
In order for partnership property to be considered as other than marital property under subsection (2)(d), the parties must have expressly agreed that the partnership assets would not become marital property. Otherwise, the question is one of intent of the parties, to be found as a fact by the trial court. In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979).
Home excluded from marital property when husband conveyed the home to wife as her separate property through an interspousal transfer deed with the intent to make it her separate property. Although not a marital agreement under the Uniform Premarital and Marital Agreements Act, because it was not signed by both parties, transfer was upheld because husband conveyed the property to wife as her sole property, admitting that this was his intent and that he was familiar with the concept of separate property and the effect of the transfer. A conveyance is different from an agreement to convey. Therefore, the interspousal transfer deed did not have to meet the requirements and formalities of the act. In re Blaine, 2019 COA 164 , __ P.3d __.
Because husband's partnership interest was vested and mature and not subject to future contingencies, trial court erred when it valued that interest by projecting the value of the partnership to the date of husband's expected retirement rather than the date of the parties' legal separation. In re Nevarez, 170 P.3d 808 (Colo. App. 2007).
Court can award any rights party may have resulting from existence of corporate assets. Although the court cannot award corporate assets to individual parties in a dissolution proceeding, the court can award to a party any rights he may have because of the existence of corporate assets. In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980).
Where husband's rights to commissions arose prior to the date of hearing, they constituted "marital property" and were subject to division. In re Johnson, 40 Colo. App. 250, 576 P.2d 188 (1977).
Money husband received in lieu of retirement benefits upon mandatory separation from Army constituted marital property subject to distribution under the terms of this section. In re Moore, 35 Colo. App. 280, 531 P.2d 995 (1975).
Residence acquired in anticipation of marriage is marital property. Where a family residence is selected and acquired within a few days of the parties' marriage in contemplation of that marriage, and the equity accumulated therein results from contributions by both parties, the court does not err in treating the residence and all equity obtained therein as marital property. In re Altman, 35 Colo. App. 183, 530 P.2d 1012 (1974).
Home purchased with wife's proceeds from sale of home owned prior to marriage is not. In view of evidence that the family home was purchased by the wife with the proceeds of the sale of a home which she owned prior to the marriage, the home was not "marital property" within the meaning of this statute. In re Armbeck, 33 Colo. App. 260, 518 P.2d 300 (1974).
Value of good will of spouse's business deemed marital property. In a division of marital property, the value of good will incident to husband's dental practice, which is an asset acquired during his marriage, must be considered as marital property. In re Nichols, 43 Colo. App. 383, 606 P.2d 1314 (1979).
Funds withdrawn by husband from joint bank account prior to wife's filing of petition for dissolution are "marital property" and should have been taken into account by trial court in making its property distribution, notwithstanding that the wife could not trace the funds after the withdrawal. In re Posinoff, 683 P.2d 377 (Colo. App. 1984).
Personal injury settlement offer, even if just for pain and suffering, is marital property if it arises from an accident which occurred during marriage. In re Fjeldheim, 676 P.2d 1234 (Colo. App. 1983).
Trial court erred in classifying a claim for personal injury protection (PIP) benefits as a marital asset where a claim had not been submitted to the insurance company as of the date of the hearing. In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 25 P.3d 28 ( Colo. 2001 ).
Accounts receivable constituted marital property. In re Bayer, 687 P.2d 537 (Colo. App. 1984).
Appreciation of premarital property which is realized during marriage is subject to division upon dissolution of marriage. In re Van Genderen, 720 P.2d 593 (Colo. App. 1985).
Reorganization under chapter 11 of bankruptcy code does not necessarily establish a business held premaritally by husband as worthless, so that entire sum received from sale of business's subsidiary stock and liquidation of business constituted marital property for purposes of division of property pursuant to dissolution. In re Van Genderen, 720 P.2d 593 (Colo. App. 1985).
Shares in mutual fund were "marital property" subject to equitable division, notwithstanding that funds used to purchase shares may have originally been husband's separate property, where evidence established that husband's intent in purchasing shares was to make a joint investment with wife and that he intended that shares should pass to wife upon his death. In re Meisner, 715 P.2d 1273 (Colo. App. 1985).
Full increase in value of parties' separate property was properly treated as marital property. In re Young, 682 P.2d 1233 (Colo. App. 1984).
Property acquired during first marriage not marital property. Absent evidence of a contrary intent, property acquired during a first marriage between the parties and before their remarriage may not be declared marital property. In re Stedman, 632 P.2d 1048 (Colo. App. 1981).
Spouse's interest in a vested but unmatured employer-supported pension plan is marital property to the extent such plan has been funded by either employee or employer contributions during the marriage and is, therefore, subject to equitable distribution in dissolution proceeding. In re Grubb, 745 P.2d 661 ( Colo. 1987 ); In re Blake, 807 P.2d 1211 (Colo. App. 1990).
Marital property subject to division does not include property acquired after the dissolution; however, compensation that is deferred until after the dissolution, but fully earned during the marriage, is marital property. In re Vogt, 773 P.2d 631 (Colo. App. 1989); In re Anderson, 811 P.2d 419 (Colo. App. 1990); In re Miller, 888 P.2d 317 (Colo. App. 1994).
Before a trial court can make an equitable distribution of pension rights, it must first determine the present value of such rights. In re Gavito, 794 P.2d 1377 (Colo. App. 1990).
Husband's vested, employer-supported pension plan held to be "marital property". In re Nelson, 746 P.2d 1346 ( Colo. 1987 ); In re Blake, 807 P.2d 1211 (Colo. App. 1990).
Husband's nonvested military pension held to be marital property. In re Beckman, 800 P.2d 1376 (Colo. App. 1990).
Trial court did not err in ruling that it had no authority to distribute the military retirement pay that husband received during the year that the parties were separated where there was no evidence presented concerning the amount received during that period nor any evidence that either party had dissipated any funds that had been received. In re Riley-Cunningham, 7 P.3d 992 (Colo. App. 1998).
Under the federal Uniformed Services Former Spouses' Protection Act, the portion of a military retirement pension that constitutes veterans' disability retirement benefits may not be divided as marital property. In re Lodeski, 107 P.3d 1097 (Colo. App. 2004); In re Warkocz, 141 P.3d 926 (Colo. App. 2006).
In case where service member had attained twenty or more years of service and was eligible for a longevity retirement when placed on the TDRL, an amount equal to the amount of TDRL pay, as calculated based on husband's percentage of disability when he was placed on the TDRL, must be excluded from the marital property. Any amounts in excess of that amount may be divided as marital property. In re Poland, 264 P.3d 647 (Colo. App. 2011).
Colorado state courts are not prohibited from dividing a military pension consisting of nondisability and disability retirement benefits as long as the portion of nondisability benefits is large enough to satisfy the other party's fractional share of the division. In re Lodeski, 107 P.3d 1097 (Colo. App. 2004).
Military retirement benefits subject to distribution as marital property in dissolution of marriage cases are limited to disposable retired pay which, under federal law, excludes disability pay. The exclusion also applies to that portion of a veteran's retirement pay that is computed using the percentage of disability on the date the veteran is placed on the temporary disability retirement list (TDRL). In re Williamson, 205 P.3d 538 (Colo. App. 2009).
Because husband was not entitled to a longevity retirement at the time he was placed on the TDRL, no portion of his retirement benefits that is based upon his disability status is distributable to wife pursuant to the parties' separation agreement that required the parties to divide the husband's pension equally according to the time rule formula. In re Williamson, 205 P.3d 538 (Colo. App. 2009).
Husband's total pay based and computed on his disability is excluded from distribution to wife as marital property, not solely the husband's specific VA benefits. Further, because the husband was not entitled to any retirement benefits but for his disability benefits, it is immaterial that he waived a portion of his disability benefits to receive VA benefits. In re Williamson, 205 P.3d 538 (Colo. App. 2009).
The nature of husband's disability retirement benefits as marital or nonmarital does not depend on whether the benefits are subject to taxation. Benefits based and computed on husband's disability are nonmarital, even if taxable. In re Williamson, 205 P.3d 538 (Colo. App. 2009).
Trial court was not preempted by federal law from characterizing special separation benefits (SSB) received by former husband upon his voluntary discharge from the Air Force as marital property and from awarding a portion of them to wife. The SSB had more of the characteristics of a deferred compensation plan than a severance payment, and, therefore, constituted marital property subject to distribution. In re McElroy, 905 P.2d 1016 (Colo. App. 1995); In re Heupel, 936 P.2d 561 ( Colo. 1997 ).
SSB benefit paid out after entry of the decree held not to be a "post-decree benefit". Hence, trial court's action in awarding a portion of the benefit to wife as marital property did not constitute a reopening of the decree, but rather an appropriate action to enforce the decree which incorporated the parties' separation agreement. In re Heupel, 936 P.2d 561 (Colo. 1997).
Spouse's election under federal law to receive indivisible veterans' disability benefits and waive divisible military retirement after entry of permanent orders does not divest trial court of jurisdiction in subsequent contempt action to enforce permanent orders. In re Lodeski, 107 P.3d 1097 (Colo. App. 2004); In re Warkocz, 141 P.3d 926 (Colo. App. 2006).
For public policy reasons, military spouse should not be allowed to unilaterally defeat the other spouse's interest in military retirement pay by voluntarily waiving retirement pay in order to receive disability pay. In re Warkocz, 141 P.3d 926 (Colo. App. 2006).
A specific dollar amount need not be set forth in the dissolution decree in order to give the nonmilitary spouse a vested interest in military spouse's retirement benefit. In re Warkocz, 141 P.3d 926 (Colo. App. 2006).
Husband's interest in contingency attorney fees which were earned during the marriage constitutes marital property subject to division. However, any portion of the fees earned after dissolution should be subject to the "reserve jurisdiction method" whereby the trial court retains jurisdiction to distribute payments when the contingent funds are received. In re Vogt, 773 P.2d 631 (Colo. App. 1989).
An unliquidated personal injury claim is marital property within the meaning of this section. The trial court should consider the actual effect that personal injury had on the marital estate in determining what the equitable share of the claim should be, and the court is required to make specific findings supporting the division of such claim. In re Fields, 779 P.2d 1371 (Colo. App. 1989), cert. denied, 781 P.2d 1040 ( Colo. 1989 ).
Assets which consist of amounts received in settlement of husband's personal injury claim and wife's loss of consortium claim are marital property and should be distributed by the court after consideration of the needs and circumstances of the parties. In re Simon, 856 P.2d 47 (Colo. App. 1993).
Stock options owned by husband at the time of marriage but exercised during the marriage using marital funds are presumed to be marital property in the absence of a showing that husband used separate property, such as money he received from an inheritance, to exercise the options. In re Renier, 854 P.2d 1382 (Colo. App. 1993).
Husband's right to severance pay as a substitute for a loss of future wages does not constitute marital property. In re Holmes, 841 P.2d 388 (Colo. App. 1992).
To the extent an employee stock option is granted in consideration of past services, the option may constitute marital property when granted. On the other hand, an employee stock option granted in consideration of future services does not constitute marital property until the employee has performed those future services. In re Miller, 915 P.2d 1314 (Colo. 1996).
Restricted stock options constitute marital property in their entirety where they represent a form of deferred compensation because husband had already earned the right to receive those shares. That husband's full enjoyment of the benefit is conditioned on his remaining an employee affects the present value of the restricted stock shares, not their marital nature. In re Miller, 915 P.2d 1314 (Colo. 1996).
A trial court has discretion to apply the "time rule" formula to the division of stock options acquired during the marriage or to reserve jurisdiction to distribute the stock options if and when they are exercised. In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 25 P.3d 28 ( Colo. 2001 ).
Employee stock options constitute property only when the employee has a presently enforceable right to the options, regardless of whether the options are presently exercisable. In re Balanson, 25 P.3d 28 ( Colo. 2001 ); In re Powell, 220 P.3d 952 (Colo. App. 2009).
Issue of "vesting" of employee stock options not determinative in ascertaining whether interest in employee stock options constitutes marital property. Rather, an employee stock option constitutes marital property for purposes of dissolution proceedings when an employee has an enforceable right to the options, regardless of whether the options are presently exercisable. In re Powell, 220 P.3d 952 (Colo. App. 2009).
Although wife's employment the year prior to issuance of the stock options may have been an eligibility requirement for the stock options, such employment did not, without more, confer any enforceable property right under the stock option plan. Wife had a mere expectancy and no property right in the stock options prior to the actual grant of the stock options after the date of the marriage. Therefore, no portion of the employee stock options were the wife's separate property, and wife did not "earn" any portion of the stock options prior to marriage. In re Powell, 220 P.3d 952 (Colo. App. 2009).
Public employees' retirement association (PERA) disability benefit prior to age 65 replaces future earnings and does not constitute marital property. In re Hansen, 62 P.3d 1066 (Colo. App. 2002).
When disabled employee reaches the age of 65, the portion of PERA benefits attributable to years of service before disability constitutes marital property, and the balance remains separate property. Regardless of employee's recovery or work status, the benefits, excluding the unearned service credit projected until age 65, are more akin to retirement benefits. In re Hansen, 62 P.3d 1066 (Colo. App. 2002).
Future disability income of husband based upon disability insurance purchased during marriage with marital funds is marital property. In re Simon, 856 P.2d 47 (Colo. App. 1993).
Trial court erred in setting apart to wife as her separate property the portions of investment traceable to income generated from trust. In re Foottit, 903 P.2d 1209 (Colo. App. 1995).
Mechanism employed by the court for dividing the marital estate is a matter within the trial court's discretion. In re Dickey, 658 P.2d 276 (Colo. App. 1982).
Property order not terminable upon remarriage. Court order constituting an adjustment of property rights between a former husband and wife did not terminate upon remarriage of wife. Greer v. Greer, 32 Colo. App. 196, 510 P.2d 905 (1973).
Share of marital estate contingent on remaining alive. Court cannot make a portion of husband's share of the marital estate contingent on his remaining alive. In re Paulsen, 677 P.2d 1389 (Colo. App. 1984).
Home to spouse with child custody. Subsection (1)(c) makes it clear that it is desirable to award the family home to the spouse having custody of the children. In re Anderson, 37 Colo. App. 55, 541 P.2d 1274 (1975).
Subsection (3) provides that possession of title is not dispositive of the method of distribution of marital property. In re Thompson, 39 Colo. App. 400, 568 P.2d 98 (1977).
Intent evidenced that property no longer in joint tenancy. An order for the sale of marital property and distribution of the proceeds evidences an intent that the property is no longer to be held in joint tenancy. Gaskie v. Hugins, 640 P.2d 248 (Colo. App. 1981).
Order charging husband with selling property within one year effectively divided the marital property as of the date of the decree. In re Weaver, 39 Colo. App. 523, 571 P.2d 307 (1977).
Court ordered conveyance of separate property to wife or sale of both non-marital and marital property is violative of statute unless there is no other way to value and divide the property equitably. In re Sarvis, 695 P.2d 772 (Colo. App. 1984).
Where the husband's expenditures and labor enabled the wife to invest a considerable percentage of her income, they should be considered as contributions to the increase in their joint, and her several, property. Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971).
Promissory note between the husband and wife and the principal due thereunder, being property acquired in exchange for property acquired prior to the marriage, were correctly treated as wife's separate property. Accrued interest should be treated as marital property and the interest payable as a marital debt, while interest accruing after the date of the decree is the wife's separate property. In re McCadam, 910 P.2d 98 (Colo. App. 1995).
Unless promissory notes demonstrate an intent that interest be treated as separate property, the interest accruing during the marriage is a marital asset, and any interest due at the time of the dissolution of the marriage is a marital debt. In re Lewis, 66 P.3d 204 (Colo. App. 2003).
In dissolution proceedings, a couple's cryogenically frozen pre-embryos constitute marital property of a special character. In re Rooks, 2018 CO 85, 429 P.3d 579.
In determining the disposition of pre-embryos, the court should first look to any existing agreement between the parties regarding the disposition of their remaining pre-embryos in the event of divorce. In the absence of any such agreement, the court should balance the parties' interests by considering the following: (1) how the party who wishes to preserve the pre-embryos intends to use them; (2) the demonstrated physical ability or inability of the party seeking to use the pre-embryos for in vitro fertilization (IVF) to have biological children through other means; (3) the parties' original reasons for undertaking IVF; (4) the potential hardship for the party that wishes to avoid becoming a genetic parent, including emotional, financial, or logistical factors; (5) either party's demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in divorce proceedings; and (6) other factors relevant to the parties' specific situation. The court should not consider: (1) the ability of the party seeking to use the pre-embryos to afford a child; (2) standing alone, the number of a party's existing children; and (3) the ability of the party seeking to use the pre-embryos to adopt or otherwise parent non-biological children. In re Rooks, 2018 CO 85, 429 P.3d 579.
Trial court lacked jurisdiction over the securities owned by the parties' children. However, trial court may consider the securities as a factor in determining how to allocate between the parties any marital debt related to the children's education. In re Gorman, 36 P.3d 211 (Colo. App. 2001).
G. After-acquired Property.
A trial court, in ordering a division of property, cannot award to the divorced wife a share in property which might be acquired by the ex-husband after the order for a division of property has been made. Menor v. Menor, 154 Colo. 475 , 391 P.2d 473 (1964).
Courts cannot divide property acquired after hearing or decree. Although courts must divide property on the basis of conditions existing at the date of the hearing or decree, they cannot consider the division of property which the parties may acquire afterwards. In re Johnson, 40 Colo. App. 250, 576 P.2d 188 (1977).
A trial court cannot award to one spouse in a dissolution a share in property which might be acquired by the other spouse after the order for division of property has been made. In re Ward, 657 P.2d 979 (Colo. App. 1982).
Court can allow wife to use husband's separate property if husband waived or intentionally relinquished the right to sole ownership of that separate property. Court, however, could not convey any ownership attributes of that property to wife. In re Ikeler, 148 P.3d 347 (Colo. App. 2006), rev'd on other grounds, 161 P.3d 663 ( Colo. 2007 ).
III. VALUATION OF PROPERTY.
Law reviews. For article, "Valuation of Businesses in Colorado Divorces", see 32 Colo. Law. 73 (June 2003). For article, "Business Valuations in Light of Thornhill", see 38 Colo. Law. 77 (Aug. 2009). For article, "Recent Changes to Military Retirement Division in Divorce", see 47 Colo. Law. 34 (Apr. 2018).
Market value of real property in dispute is standard adopted by the general assembly. In re Lord, 626 P.2d 698 (Colo. App. 1980), appeal dismissed, 653 P.2d 385 ( Colo. 1982 ).
Necessity of finding current value of all property. Generally, in making a division of property, the court must find the approximate current value of all property owned by the parties, as well as the value of separate property at the time of the marriage or at the time of acquisition, if after marriage. However, where the court determines the percentage ownership each party has in the marital property, and that percentage is not an issue on appeal, the failure to make such findings of current value is not necessarily erroneous. In re Weaver, 39 Colo. App. 523, 571 P.2d 307 (1977).
This section expressly requires that property be valued as of the date of the dissolution of the marriage or as of the date of the hearing on disposition of the property if such hearing precedes the date of dissolution. This provision is mandatory, and the only exception is that the marital property dissipated before dissolution of the marriage can be valued as of the date the property last existed. In re Hunt, 909 P.2d 525 ( Colo. 1995 ); In re Finer, 920 P.2d 325 (Colo. App. 1996); In re Lockwood, 971 P.2d 264 (Colo. App. 1998).
The trial court did not have discretion to create, for equitable purposes, a fictitious date of dissolution for purposes of calculating the wife's share of the husband's military pension. In re Lockwood, 971 P.2d 264 (Colo. App. 1998).
Court's discretion in determining property valuation date. This section gives the trial court broad discretion in matters of property division, including determination of the property valuation date for division of marital property. Gaskie v. Hugins, 640 P.2d 248 (Colo. App. 1981).
Court's valuation was sufficiently supported by evidence of parties' agreement as to value of lot, wife's response to husband's request for admission of current market value of property, and verified financial statements and proposed final orders submitted by both parties. In re Price, 727 P.2d 1073 (Colo. 1986).
Valuation on the date of dissolution based on an earlier agreement does not abuse court's discretion, where trial court was fully appraised of its duty to value the disputed lot as of the date of dissolution. In re Price, 727 P.2d 1073 (Colo. 1986).
Subsequent testimony to the valuation as of the date of dissolution which concerned the value of the disputed lot was not sufficient as a matter of law to overcome documentary evidence to the contrary. In re Price, 727 P.2d 1073 (Colo. 1986).
Stipulated values not binding. Where the trial court has determined that fairness and equity require that the division be an equal one, the stipulated values set 10 years before are neither binding nor relevant. Gaskie v. Hugins, 640 P.2d 248 (Colo. App. 1981).
However, parties' agreement as to the value nine months before the date of dissolution was not outdated and irrelevant to court's determination of real estate's value. In re Price, 727 P.2d 1073 (Colo. 1986).
Trial court is not bound by partnership agreement in determining value of law practice. Where partnership agreement was designed to discourage partners from leaving firm and it appeared husband intended to stay with firm, court was free to use an alternate valuation method such as the excess earnings method. In re Huff, 834 P.2d 244 (Colo. 1992).
Because husband's partnership interest was vested and mature and not subject to future contingencies, trial court erred when it valued that interest by projecting the value of the partnership to the date of husband's expected retirement rather than the date of the parties' legal separation. In re Nevarez, 170 P.3d 308 (Colo. App. 2007).
Excess earnings method is a generally accepted method for determining the present value of a person's interest in a business, representing both tangible assets and goodwill. In re Huff, 834 P.2d 244 (Colo. 1992).
Excess earnings method did not result in "double dipping" by wife awarded maintenance as well as a portion of present value of husband's interest in law practice. In re Huff, 834 P.2d 244 (Colo. 1992).
Weight to be accorded to the valuation techniques of an expert is for the trial court's determination, depending upon the court's assessment of the reliability of the data in a particular case. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 ( Colo. 1993 ); In re Antuna, 8 P.3d 589 (Colo. App. 2000).
Decision as to which valuation method to rely on is a factual determination to be made by the trial court. In re Huff, 834 P.2d 244 ( Colo. 1992 ); In re Page, 70 P.3d 579 (Colo. App. 2003).
Marketability discount may be applied in determining value of husband's business where court determines that failure to do so would unfairly penalize husband for ownership of shares that cannot be readily sold or liquidated. The court must make a clear record of the reasons for applying a given discount rate. In re Thornhill, 200 P.3d 1083 (Colo. App. 2008), aff'd, 232 P.3d 782 ( Colo. 2010 ).
It was within the trial court's discretion to accept wife's opinion of value as an owner of the marital residence, which opinion was partially based upon her extensive knowledge of the property, a heightened awareness of its value, and the valuations provided to her. In re Lewis, 66 P.3d 204 (Colo. App. 2003).
Goodwill is a property or asset which supplements the earning capacity of another asset, business, or a profession, and, therefore, is not the earning capacity itself. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 ( Colo. 1993 ).
The value of goodwill in an ongoing physical therapy practice is properly measured by arriving at a present value based upon past results and not by accounting for the postmarital efforts of the professional spouse. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 ( Colo. 1993 ).
Identification, valuation, and division of husband's "good will" as a portion of his physical therapy practice did not divide husband's future income. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 ( Colo. 1993 ).
Trial court erred in failing to credit wife with the value of her interest in a medical practice as a marital asset. In re Antuna, 8 P.3d 589 (Colo. App. 2000).
The conservation of the principal of an estate is, in itself, a valuable contribution which should be considered. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).
When determining the present value of a vested interest in a trust that is subject to divestment based on a condition subsequent, a variety of circumstances should be considered, including actuarial information concerning the life expectancy of the life estate beneficiary and information concerning the future distributions to that beneficiary. In re Dale, 87 P.3d 219 (Colo. App. 2003).
In disposing of a vested but unmatured pension plan, the principles of fairness and equity must attend the valuation process, and the contingencies underlying the particular pension plan must be taken into account. In re McGinnis, 778 P.2d 282 (Colo. App. 1989).
Valuation of undisclosed assets. Once property has been divided pursuant to this section, such property becomes akin to separate property, and any increase in the valve of ownership interest therein should be considered when determining valuation. The failure to do so constitutes a confiscatory taking. In re Hiner, 710 P.2d 488 (Colo. 1985).
Increase in value of separate property after dissolution of marriage is necessarily separate. In re Campbell, 43 Colo. App. 72, 599 P.2d 275 (1979).
The amount by which the present value of an asset of a spouse acquired before the marriage exceeds its value at the time of the marriage constitutes a marital asset. In re Burford, 950 P.2d 682 (Colo. App. 1997).
In carrying out the division of the marital estate, the dissolution court should first add to the marital estate the amount of increase during the course of the marriage, if any, in each asset that was owned by each party before marriage. If an asset suffered a decrease in value, it should be disregarded in calculating the overall value of a spouse's separate property. Then the court should consider whether the overall value of the spouse's entire separate property has increased or decreased for the purpose of dividing the marital estate. In re Burford, 950 P.2d 682 (Colo. App. 1997).
Although the assets paid off by husband may not have increased in fair market value, husband's use of marital funds to pay off his separate debts substantially increased his equity in his separate property and must be considered in the property division. It is not necessary that the spouse produce a marital "asset" capable of being divided when marital funds are used to pay off one spouse's premarital debts. It is sufficient that the spouse paying off or paying down the separate property received a benefit from the marital income such as increased equity in its own property. The court should consider the benefit as an economic circumstance. In re Burford, 26 P.3d 550 (Colo. App. 2001).
When debts have already been paid, they may be allocated in the property division through reimbursement. In re Burford, 26 P.3d 550 (Colo. App. 2001).
Debts incurred during the marriage but which are dissolution litigation costs should be allocated pursuant to § 14-10-119. In re Burford, 26 P.3d 550 (Colo. App. 2001).
In the case of a pension plan inaccessible prior to the employee's distant retirement and terminable upon the employee's death, the risk of forfeiture is an important factor for the trial court to consider. In such a case it would be inequitable to require an immediate, lump-sum payment unless the present value included the risk of forfeiture as a factor. In re McGinnis, 778 P.2d 281 (Colo. App. 1989).
Vested but unmatured pension benefits are marital property not subject to inflexible rules of property valuation. Combination of deferred distribution and reserve jurisdiction valuation based on earliest possible retirement date for husband with full benefits proper where husband was not currently entitled to retirement benefits. In re Kelm, 878 P.2d 34 (Colo. App. 1994), aff'd in part and rev'd in part on other grounds, 912 P.2d 545 ( Colo. 1996 ).
No basis for reversal despite court error in valuing wife's vested but unmatured PERA retirement fund. Because PERA combines elements of defined benefit and defined contribution plans, it was error for the court to base the present value of the wife's PERA account purely upon her contributions as of the date of dissolution. A proper determination of present value required the application of a series of actuarial and investment assumptions relating to the wife's life expectancy and probable retirement age to the contractual or statutorily awarded benefit. However, because husband acquiesced in this error and failed to present any evidence at trial as to the value of wife's PERA pension and because he made no objection or argument challenging wife's valuation during the permanent orders hearing, there is no basis for reversal. In re Zappanti, 80 P.3d 889 (Colo. App. 2003).
Unvested, unmatured, noncontributory defined benefit pension plans are affected by different contingencies from those where plans are vested. In re Hunt, 909 P.2d 525 (Colo. 1995).
Three methods of distribution are at court's disposal in order to divide a pension plan upon dissolution: (1) net present value; (2) deferred distribution; and (3) reserve jurisdiction. In re Hunt, 909 P.2d 525 (Colo. 1995).
"Time rule" formula, used to apportion pension benefits under the net present value and deferred distribution methods, described in In re Hunt, 909 P.2d 525 (Colo. 1995).
"Subtraction method" disapproved. Under the net present value method of distributing a pension plan, trial court's procedure of subtracting the present value of the husband's pension at the time of the marriage from the present value of the husband's pension at the time of the dissolution represented an abuse of discretion because, under the circumstances, this procedure grossly overstated the wife's share. In re James, 950 P.2d 624 (Colo. App. 1997).
Trial court had discretion to use subtraction method instead of the time-rule formula where the value of the trust was unrelated to any efforts taken by wife or husband, post-dissolution enhancements were irrelevant, and the wife failed to explain why the time-rule formula would produce a more accurate and fair apportionment of the trust interest. In re Dale, 87 P.3d 219 (Colo. App. 2003).
Trial court is not preempted from using the net present value method to distribute an unmatured military pension. In re Riley-Cunningham, 7 P.3d 992 (Colo. App. 1998).
Trial court did not abuse its discretion in offsetting the net present values of the parties' military pensions and making a present distribution of the respective pensions, even though husband was retired from active duty while wife was not entitled to retire immediately and was still on active reserve. In re Riley-Cunningham, 7 P.3d 992 (Colo. App. 1998).
Court did not err by distributing husband's railroad retirement benefits using the net present value method. In re Zappanti, 80 P.3d 889 (Colo. App. 2003).
However, trial court is required to apply the coverture fraction, the accepted means of calculating the marital share of a pension, by multiplying the present value of the pension by the number of years or months that benefits accumulated during the marriage and dividing by the total number of years or months that benefits accumulated. In re Zappanti, 80 P.3d 889 (Colo. App. 2003).
Court should have considered actuarial information concerning the life expectancy of husband's parents and relevant information concerning the likelihood that trustee would invade the trust corpus in the future in determining the net present value of a vested interest in a trust that is subject to divestment on a condition subsequent. In re Mohrlang, 85 P.3d 561 (Colo. App. 2003).
Post-divorce pension enhancements are not necessarily separate property. Although post-divorce earnings are undisputably separate property, pension enhancements are subject to application of the "time rule" formula and may be apportioned. In re Hunt, 909 P.2d 525 (Colo. 1995).
Economic fault may be considered by the trial court when it is dividing marital assets. In re Jorgenson, 143 P.3d 1169 (Colo. App. 2006).
"Economic fault" concept rejected as a factor in distribution of post-divorce pension enhancements. In re Hunt, 909 P.2d 525 (Colo. 1995).
Court is not required to value or divide the parties' respective retirement plans by any set method so long as the division is equitable. No error in awarding wife the entire contribution she had made to a Public Employee Retirement Account where the benefits from such contribution were significantly less than husband's retirement benefits. In re Kelm, 878 P.2d 34 (Colo. App. 1994), aff'd in part and rev'd in part on other grounds, 912 P.2d 545 ( Colo. 1996 ).
Court may retain jurisdiction over the distribution and valuation of stock options so that each party will "share in the risk of the fate of each of the options." In re Huston, 967 P.2d 181 (Colo. App. 1998).
Wife entitled to amount of husband's retirement funds, in the event of his death, only to extent of contributions made as of the date of dissolution. In re Kelm, 878 P.2d 34 (Colo. App. 1994), aff'd in part and rev'd in part on other grounds, 912 P.2d 545 ( Colo. 1996 ).
An obligation to guarantee the debt of another should not be considered in a property valuation when the chance of liability is so small as to be speculative. If there is a quantifiable likelihood of liability, the obligation should be valued at its face amount times the percentage chance of liability. In re Jorgenson, 143 P.3d 1169 (Colo. App. 2006).
Just as a court is required to allocate the contingent value of assets in pensions and trusts, it must similarly determine the value of a contingent marital debt. It may do so in one of two ways: (1) Determine, on the basis of testimony, the potential obligation, discounted to reflect the percentage of liability; or (2) otherwise divide the marital assets and debts, reserving jurisdiction to allocate the contingent marital debt until such time as the amount of such contingent debt has been determined. In re Jorgenson, 143 P.3d 1169 (Colo. App. 2006).
"Seller's costs". The trial court did not err in not deducting normal seller's costs from the value of the home when it purported to split between the parties the remaining equity in the home because "seller's costs" were speculative at best. Rhoades v. Rhoades, 188 Colo. 423 , 535 P.2d 1122 (1975).
Husband not entitled to share in the future appreciation of the home because property is valued at the dissolution hearing or property division hearing. In re Wornell, 697 P.2d 812 (Colo. App. 1985).
Loss apportioned. The trial court may apportion a loss in value of separate property between the parties. In re Talarico, 36 Colo. App. 389, 540 P.2d 1147 (1975).
Conclusion that parties did not contribute to enhancement of stock proper. Since investment patterns of persons in a situation similar to a particular married couple is not a matter of common knowledge, and therefore, comparisons of the investments in the wife's portfolio to those of some hypothetical average investor or a skilled investment counselor were merely speculation, it was proper for the trial court to conclude on the basis of such observations that neither party contributed to enhancement of the value of the stocks. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).
Valuation of intangible assets of husband's business. In determining the intangible value of husband's business, the important consideration is whether husband's business has a value to him above and beyond the tangible assets. In re Martin, 707 P.2d 1035 (Colo. App. 1985); In re Huff, 834 P.2d 244 ( Colo. 1992 ).
Spouse was not entitled to any increase in value of assets awarded to her from the date of the decree to the date the permanent orders were entered where the decree was entered prior to the date of the hearing on disposition of property. In re Graff, 902 P.2d 402 (Colo. App. 1994).
Specific determination of the nature and elements of goodwill may be required when court orders one party to execute a covenant not to compete for protection of the goodwill of a business awarded to the other party. In re Fischer, 834 P.2d 270 (Colo. App. 1992).
Central to the valuation of property is the determination whether the property will actually be sold, thereby resulting in a net equity. The court should consider husband's intentions as to whether he will sell the property at issue, and if the property is to be sold, the finding of net equity must comport with the evidence. In re Finer, 920 P.2d 325 (Colo. App. 1996).
In case of dissipation of property, trial court's alternative ruling that stock shares could be valued at the time when they were sold, if that value was higher than the value on the date of the decree, was proper. In re Huston, 967 P.2d 181 (Colo. App. 1998).
Trial court did not err in valuing a leased automobile at $13,500, where husband had recently prepaid $13,500 on the lease of the leased vehicle. In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 25 P.3d 28 ( Colo. 2001 ).
Subsection (5) makes no provision regarding the date on which interest should begin to accrue on any sum ordered to be paid as part of the division of marital property. In re Rodrick, 176 P.3d 806 (Colo. App. 2007).
Applied in In re Thompson, 706 P.2d 428 (Colo. App. 1985).
IV. SCOPE OF REVIEW.
Scope of review. Division of property in dissolution of marriage proceedings may only be overturned upon a finding that the trial court abused its discretion. In re Talarico, 36 Colo. App. 389, 540 P.2d 1147 (1975); In re Sharp, 823 P.2d 1387 (Colo. App. 1991).
An appellate court will alter a division of property only if the trial court abuses its discretion. In re Graham, 194 Colo. 429 , 574 P.2d 75 (1977).
One who has accepted benefits of judgment may not seek reversal of that judgment on appeal. In re Jones, 627 P.2d 248 (Colo. 1981).
Acceptance of the benefits of a judgment constitutes a waiver of appeal rights only if such action is inconsistent with the basis for the appeal. It is when the appeal, if successful, will again put into issue the right of the party to receive the benefits already accepted that a waiver of the right to appeal has been found. In re Antuna, 8 P.3d 589 (Colo. App. 2000).
Husband is not barred from appealing portion of the property division where he had previously received his share of the retirement funds pursuant to the parties' agreement before the hearing on permanent orders. In re Antuna, 8 P.3d 589 (Colo. App. 2000).
A trial court having reached its conclusions and entered its order and judgment on documentary evidence alone, the supreme court was as well qualified to determine the equities involved in a divorce action concerning a division of the property of the parties as was the trial court, and under such circumstances, presumptions in favor of the correctness of the order and judgment were not conclusive. Stephenson v. Stephenson, 134 Colo. 96 , 299 P.2d 1095 (1956).
In an action for divorce, where the questions presented to the appellate court for review concern only the property rights of the parties, matters relating to the divorce were not considered. Wigton v. Wigton, 73 Colo. 337, 216 P. 1055 (1923).
Where the reporter's transcript of the testimony taken at a hearing on division of property in a divorce action was not included in the record on error, the supreme court assumed that the trial court had before it the entire situation of the parties, that the evidence before the court fully supported the determination made, and that all conflicting claims of the parties were properly resolved. Gier v. Gier, 139 Colo. 289 , 339 P.2d 677 (1959).
Where a decree ordering the title to property to remain in joint tenancy and granting the rights of possession and income in the property to the wife was not challenged, and had long since become final, the supreme court could not review it. McDonald v. McDonald, 150 Colo. 492 , 374 P.2d 690 (1962).
Under the law of the case doctrine, conclusions of an appellate court on issues presented to it, as well as rulings logically necessary to sustain such conclusions, become the law of the case and generally must be followed in subsequent proceedings in that case. However, application of the law of the case by a trial court to its property division rulings entered prior to an appeal is a discretionary rule of practice. The trial court's original permanent orders lose any binding effect or precedential value when they are reversed on appeal. In re Burford, 26 P.3d 550 (Colo. App. 2001).
V. ENFORCEMENT.
Enforcement of property settlement. Ordering the payment of an amount due pursuant to the terms of the property settlement, together with interest, is an enforcement of the original decree and not a modification of the property settlement. In re Schutte, 721 P.2d 160 (Colo. App. 1986).
14-10-114. Spousal maintenance - advisory guidelines - legislative declaration - definitions.
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Legislative declaration.
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The general assembly hereby finds that:
- The economic lives of spouses are frequently closely intertwined in marriage and that it is often impossible to later segregate the respective decisions and contributions of the spouses; and
- Consequently, awarding spousal maintenance may be appropriate if a spouse needs support and the other spouse has the ability to pay support.
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The general assembly further finds that:
- Because the statutes provide little guidance to the court concerning maintenance awards, there has been inconsistency in the amount and term of maintenance awarded in different judicial districts across the state in cases that involve similar factual circumstances; and
- Courts and litigants would benefit from the establishment of a more detailed statutory framework that includes advisory guidelines to be considered as a starting point for the determination of fair and equitable maintenance awards.
- Therefore, the general assembly declares that it is appropriate to create a statutory framework for the determination of maintenance awards, including advisory guidelines for the amount and term of maintenance in certain cases, that will assist the court and the parties in crafting maintenance awards that are fair, equitable, and more consistent across judicial districts and in their application to both parties.
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The general assembly hereby finds that:
- At the time of permanent orders in dissolution of marriage, legal separation, or declaration of invalidity proceedings, and upon the request of either party, the court may order the payment of maintenance from one spouse to the other pursuant to the provisions of this section. An award of maintenance shall be in an amount and for a term that is fair and equitable to both parties and shall be made without regard to marital misconduct.
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Determination of maintenance. When a party has requested maintenance in a dissolution of marriage, legal separation, or declaration of invalidity proceeding, prior to granting or denying an award of maintenance, the court shall make initial written or oral findings concerning:
- The amount of each party's gross income;
- The marital property apportioned to each party;
- The financial resources of each party, including but not limited to the actual or potential income from separate or marital property;
- Reasonable financial need as established during the marriage; and
- Whether maintenance awarded pursuant to this section would be deductible for federal income tax purposes by the payor and taxable income to the recipient.
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After making the initial findings described in subparagraph (I) of this paragraph (a), the court shall determine the amount and term of the maintenance award, if any, that is fair and equitable to both parties after considering:
- The guideline amount and term of maintenance set forth in paragraph (b) of this subsection (3), if applicable, based upon the duration of the marriage and the combined gross incomes of the parties;
- The factors relating to the amount and term of maintenance set forth in paragraph (c) of this subsection (3); and
- Whether the party seeking maintenance has met the requirement for a maintenance award pursuant to paragraph (d) of this subsection (3).
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Determination of maintenance. When a party has requested maintenance in a dissolution of marriage, legal separation, or declaration of invalidity proceeding, prior to granting or denying an award of maintenance, the court shall make initial written or oral findings concerning:
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Advisory guideline amount and term of maintenance. If the duration of the parties' marriage is at least three years and the parties' combined annual adjusted gross income does not exceed two hundred forty thousand dollars, the court shall make additional oral or written findings concerning the duration of the marriage in whole months and the advisory guideline amount and term of maintenance, calculated as follows:
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- If the maintenance award is deductible for federal income tax purposes by the payor and taxable income to the recipient, the amount of maintenance under the advisory guidelines is equal to forty percent of the parties' combined monthly adjusted gross income minus the lower income party's monthly adjusted gross income. If the calculation results in a negative number, the amount of maintenance is zero.
- If the maintenance award is not deductible for federal income tax purposes by the payor and not taxable income to the recipient, the amount of maintenance under the advisory guidelines for parties with a combined monthly adjusted gross income of ten thousand dollars or less is equal to eighty percent of the amount calculated pursuant to subsection (3)(b)(I)(A) of this section.
- If the maintenance award is not deductible for federal income tax purposes by the payor spouse and not taxable income to the recipient spouse, the amount of maintenance under the advisory guidelines for parties with a combined monthly adjusted gross income of more than ten thousand dollars but not more than twenty thousand dollars is equal to seventy-five percent of the amount calculated pursuant to subsection (3)(b)(I)(A) of this section.
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- The advisory term of maintenance under the guidelines, calculated in whole months, for marriages of at least three years but not more than twenty years, is set forth in the table contained in subsection (3)(b)(II)(B) of this section. When the duration of the parties' marriage exceeds twenty years, the court may award maintenance for a specified term of years or for an indefinite term, but the court shall not specify a maintenance term that is less than the maintenance term under the guidelines for a twenty-year marriage without making specific findings that support a reduced term of maintenance.
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Factors affecting the amount and term of maintenance. In any proceeding for maintenance, the court shall consider all relevant factors, including but not limited to:
- The financial resources of the recipient spouse, including the actual or potential income from separate or marital property or any other source and the ability of the recipient spouse to meet his or her needs independently;
- The financial resources of the payor spouse, including the actual or potential income from separate or marital property or any other source and the ability of the payor spouse to meet his or her reasonable needs while paying maintenance;
- The lifestyle during the marriage;
- The distribution of marital property, including whether additional marital property may be awarded to reduce or alleviate the need for maintenance;
- Both parties' income, employment, and employability, obtainable through reasonable diligence and additional training or education, if necessary, and any necessary reduction in employment due to the needs of an unemancipat
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