Jurisdictional Requirements: May I File for Divorce in Colorado?
Filing for divorce presents a party, or parties, with the following question: in which state may I file? This inquiry is important for couples who were married in a state in which they no longer reside, for couples who currently live in separate states, and for couples who recently, or are considering, moving to a new state.
To file for divorce in Colorado, one spouse must be domiciled in Colorado for at least 91 days prior to filing for divorce C.R.S. §14-10-106(1)(I). Domicile is established by physical residence in the state combined with an intent to remain as a resident in that specific state. Unlike residences, of which individuals may have multiple (for example a winter home in Austin and a summer home in Aspen), it is possible to have only one domicile.
Therefore, if one spouse satisfies Colorado’s domicile requirements, Colorado will be able to dissolve the marriage because Colorado will have “subject matter jurisdiction.” In this instance, location of marriage is irrelevant as to whether one may file for divorce in Colorado.
It is important to note that Colorado’s ability to dissolve the marriage does not necessarily mean Colorado has jurisdiction, or authority, to resolve other related issues, such as financial matters (spousal support or child support) and child custody issues. A divorce can consist of many different avenues, including the dissolution of the marriage itself, division of property and debt, child[ren] issues and spousal support [maintenance] just to name a few. A court may have jurisdiction to make a decision on all, or just some, of these issues.
Once domicile has been established, one must consider personal jurisdiction. In order to divide the marital estate and make financial awards, Colorado needs personal jurisdiction over both parties. Without personal jurisdiction, the court may only be able dissolve the marriage. Personal jurisdiction over the filing party is not a concern if he or she has established subject matter jurisdiction. Obtaining personal jurisdiction over the spouse, however, can be an issue.
Colorado may obtain jurisdiction over the spouse in several different ways. The first is through the filing of a Co-Petition for Dissolution of Marriage. The parties complete this Co-Petition jointly, and file it together with the Court. The second, especially in situations where the spouse no longer resides in Colorado or never resided in Colorado, is by the spouse accepting to proceed with the divorce in Colorado. Waiving jurisdiction is done one of two ways: (1) by having the spouse complete a mailed form indicating that the spouse waives all claims and accepts Colorado as the Court to dissolve the marriage; or (2) by having the spouse waive any impediments to Colorado having jurisdiction after being served while outside of Colorado (for spouses living in separate states).
Another way to obtain jurisdiction in Colorado over a spouse is by personally serving the other spouse in the State of Colorado. If one spouse initiates the divorce proceeding by filing a Petition for Dissolution of Marriage (not a Co-Petition as mentioned above), the filing spouse has to “serve” the other spouse with the divorce papers after the Court has accepted the case. Regardless of where the other spouse lives, Colorado will have personal jurisdiction over that spouse if they are served in Colorado. Finally, personal jurisdiction may also be established if the matrimonial domicile was maintained in Colorado, even if the other spouse no longer resides in Colorado and is served outside the State of Colorado.
Colorado is likely the appropriate state for you to file your divorce if you can satisfy both subject matter jurisdiction and personal jurisdiction. Children have their own jurisdiction rules, so please be sure to read part two of this jurisdictional series. For questions about this article please contact Gregg Greenstein.
Note: Brittaney McGinnis is no longer with the law firm of Frascona, Joiner, Goodman and Greestein, P.C.