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14-10-107. Commencement - pleadings - abolition of existing defenses - automatic, temporary injunction - enforcement

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(1) All proceedings under this article shall be commenced in the manner provided by the Colorado rules of civil procedure.

(2) The petition in a proceeding for dissolution of marriage or legal separation shall allege that the marriage is irretrievably broken and shall set forth:

(a) The residence of each party and the length of residence in this state;

(b) The date and place of the marriage;

(c) The date on which the parties separated;

(d) The names, ages, and addresses of any living children of the marriage and whether the wife is pregnant;

(e) 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;

(f) The relief sought; and

(g) 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.

(3) 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.

 

(4) (a) 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 clerks office.

 

(b) (I) 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:

(A) 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;

(B) Enjoining both parties from molesting or disturbing the peace of the other party;

(C) 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

(D) 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, homeowners or renters 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.

(II) 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.

(III) The summons shall contain the following advisements:

(A) 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

(B) 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.

(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.

(5) 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.

(6) All issues raised by these proceedings shall be resolved by the court sitting without a jury.

History

History.
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.

Annotations

ANNOTATION

I.GENERAL CONSIDERATION.

Law reviews. For article, Expediting Court Procedure, see 10 Dicta 113 . 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).

Annotators 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 courts 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 plaintiffs 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 plaintiffs 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).

Decedents 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 spouses 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 states 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 petitioners 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 wifes sale of stock shares when wife cashed out shares after entry of the automatic temporary injunction. Wifes 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).