What Does No-Fault Divorce Mean?
“My spouse had an affair. Can I tell the judge about this?”
“My spouse is an alcoholic, and I am concerned for the kids. Will the judge give him parenting time?”
I hear questions like these all the time. Clients are often interested in using the other party’s bad behavior against them at a hearing. Lawyers often refer to this as “character evidence.”
Colorado is a “no-fault divorce” state. This means that, as a general rule, a party’s conduct during the marriage is not considered during the divorce. However, there are several exceptions to this general rule. I frequently see this issue come up in the context of an affair, domestic violence, criminal charges pending against one parent, or drug or alcohol use.
Frequently, character evidence is used when the parties have children and cannot agree on a parenting time schedule. However, the parents’ actions must be tied to the child’s health or safety. Generally, this means that a parent’s affair cannot be mentioned at the hearing. However, relevant actions that a court will consider include: drug use; drinking alcohol to excess; leaving children unattended; domestic violence; or criminal charges pending against a spouse.
If criminal charges are pending against a spouse, that party’s ability to see their children will depend on what the spouse is charged with. If a spouse is charged with domestic violence, the criminal court will impose a mandatory protection order. If the children are named in the order, then the family court cannot order visitation with the children. In that case, you should ask the criminal court to modify the protection order to allow for visitation with the children. The court will require this visitation to be supervised by a licensed professional.
A spouse’s bad behavior may also be relevant if it falls under the heading of “economic fault.” This is an extremely narrow category, and applies when a spouse is concealing, hiding, or spending money to keep it from being divided during the divorce. The spouse’s conduct must occur either during the divorce process or in contemplation of divorce. Examples can include gifting large sums of money to a significant other who is not the spouse, or purposefully letting a business fail so that it has no value.
Introducing evidence of the other party’s bad acts during the marriage is always a delicate subject. This is true regardless of whether you are concerned about your actions, or you are the one wanting to introduce evidence about the other party. You should consult with an experienced family law attorney, like Katelyn, who can help you prepare your case as well as possible.