In any divorce, child custody, or child support case, one of the first questions that need to be asked is whether and where jurisdiction is proper. Jurisdiction in family law cases ties into not only notions of where a case should be held, but also whether a particular state, county, or court has personal jurisdiction over the parties or subject matter.
In a Colorado divorce case, there are various issues that may need to be dealt with, both of a financial and child-related nature. Those issues may include division of marital property, spousal support (“maintenance”), child custody and visitation, and child support. Though the jurisdictional requirement to file for divorce in Denver is that one or both of the parties has been domiciled in Colorado for 91 days or more, there are jurisdictional considerations that need to be assessed for each and every one of the divorce topics which might arise.
As relates to financial matters, the first part of the assessment when filing is to determine whether Colorado has personal or “in personam” jurisdiction over the other party. Under Constitutional Law doctrines and notions of due process, for Colorado to be able to affect a person’s finances the state must have personal jurisdiction over them. There must be a connection between the person and Colorado for there to be jurisdiction over them such that there is at least minimal contact between them and the state. Not all divorce cases entail two people living in the state and it is not uncommon for one spouse to live in another state. If both parties reside in Colorado, jurisdiction over both is obvious or readily apparent. If one party lives out of state, Colorado may have jurisdiction over that spouse under certain circumstances.
- If Colorado was the state in which the parties last resided together, but one party moves away, Colorado has jurisdiction over the moving party under its “long arm statute,” C.R.S.13-1-124. Under this concept, the state maintains jurisdiction over the person despite them moving away, so long as the other spouse remains here, and can reach out its “long arm” to take hold of them in a jurisdictional sense in the event of a divorce.
- Jurisdiction in a divorce case can be exercised over a party not residing in Colorado if they can be personally served with the petition and summons for divorce while in Colorado. The exception to this rule would be if that person is in Colorado to challenge that jurisdiction or for other legal proceedings not initiated by them.
- If the out-of-state spouse owns real estate in Colorado they are subject to the state’s jurisdiction in a divorce.
- If the out-of-state person regularly conducts business in Colorado, thereby benefitting from our rules, regulations, and protections, they may also be subject to Colorado’s jurisdiction in a divorce.
- If the spouse residing in Colorado is there at the direction of the out-of-state party or as a direct result of their overt actions, there is also an argument that Colorado has jurisdiction over them, at least as to issues of alimony and child support.
As relates to child custody matters, whether alone or as part of a divorce case, Colorado’s jurisdiction is established tied into the child, not the parents. For Colorado to exercise jurisdiction over a child in a new allocation of parental responsibilities case, the child must have resided in Colorado for a period of 6 months or more (182 days). This rules derive from the Uniform Child Custody Jurisdiction and Enforcement Act, C.R.S. 14-13-101, which deals with interstate jurisdiction issues and child custody. The 6 months rule is the underlying core of the UCCJEA as relates to filing of new cases. However, there are exceptions set forth in the statute for children under 6 months of age, temporary absences from the state, and when emergencies exist which may give Colorado reason to exercise temporary emergency jurisdiction until things can be addressed, in a long term sense, in the proper state.
Once child custody orders have been entered, the issuing state maintains exclusive and continuing jurisdiction over the child and custody/visitation matters unless there has been a change in circumstances. If a child and parent have been in Colorado for 6 months or more, though orders were entered in another state, the parties can register the “foreign custody determination” in Colorado for enforcement purposes. If the child and a parent have been in Colorado for 6 months or more and neither parent continues to reside in the issuing state, Colorado can also exercise jurisdiction for purposes of modifying parenting time and decision making, once the out-of-state orders have been registered here for modification purposes. Parties to a Colorado child custody case can also motion the court to have Colorado divest itself of child custody jurisdiction if the child has been gone for a significant amount of time, such that there is no longer a meaningful connection between the child and the state.
Jurisdictional issues can get complex and tricky. When there is an out-of-state component to your case, it’s best to consult with a family law attorney prior to embarking on a course of action related to your divorce, custody, or child support issues.
