Protective orders start automatically so your spouse can't act like a total jerk
Whether to file for divorce at a particular time is often the first question one asks oneself in deciding to dissolve a marriage. The answer to that question depends on one’s need for court protection regarding assets, continued payment of utilities and insurance, and custody of any children of the marriage.
CRS 14-10-107 provides the following four protections for you at the time you file for divorce:
1. Both parties are restrained 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. Each party is required to notify the other party of any proposed extraordinary expenditures and to account for all extraordinary expenditures made after the injunction is in effect.
This means neither party can sell off any property, use property for collateral, liquidate any investments, or drain any bank accounts. This does not mean the property must remain where it sits. Spouses often agree to divide up some personal items as one spouse may be moving out of the marital residence. It also does not mean you’re forbidden from withdrawing cash from a joint checking account. It does mean, that if you do sell property, use property for a loan, liquidate investments or withdraw funds, you must make sure such actions have typically occurred prior to your filing for divorce. And you may have to pay back the value of those actions later. For example, if you sell a recreational vehicle for a $20,000 profit, you may have to give $10,000 of those proceeds to your spouse.
2. Both parties are enjoined from molesting or disturbing the peace of the other party or the minor children.
This acts somewhat as a protection order, but without the possibility of criminal charges coming into play. Not surprisingly, the breakdown of a marriage can have a huge emotional impact on the parties, and some parties don’t handle those emotions very well. It can cause one party to threaten, demean and harass the other party. If you need such things to stop, and the other party’s actions don’t rise to the level of a judge issuing a protection order, filing for divorce can give you the means to stop the other party’s actions.
3. Both parties are restrained 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.
This injunction is to keep a parent from obtaining an advantage over the other parent when it comes time for the judge to decide on the allocation of parental responsibilities. Some judges will enforce this injunction if one parent recently left Colorado indefinitely with the kids. Therefore, if your spouse has taken your children out of state, the sooner you file for divorce, the more likely it is you’ll have grounds to have them returned to you until the judge can sort out what is in their best interests. You will also need to immediately file a motion for temporary parenting time after filing for divorce to clearly define visitation with your children until the judge – or you and your spouse – can figure out a long-term solution.
4. Both parties are restrained, without at least 14 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.
Sometimes a spouse, in an emotional reaction to the breakdown of the marriage, will try to obtain leverage over the other spouse by cutting off utilities – including cell phone service – or terminating insurance. This injunction guards against that. However, in the initial phase of a divorce, it may not be possible for one spouse to maintain all these payments while also trying to set up a separate residence. If this is the case, it may be prudent to establish how all these obligations will be may by filing for temporary orders.
In short, if you think your spouse is going to dispose of marital property, run off with your children, or leave you without utilities or insurance coverage, it’s likely time to file for divorce.