Parties to a Domestic Relations Case, Service of Process and the Mandatory Injunction

There are usually two parties in a domestic relations case: the spouses and/or parents. There can be other parties on occasion if they intervene, such as a grandparent seeking time with children. The parties are referred to as the Petitioner and Respondent. The Petitioner files the action and the Respondent responds. If the parties both sign the petition, then the Respondent is referred to as the Co-Petitioner.

When filing documents with the court, the other party must be provided with a copy so they have the opportunity to respond and participate. Initial documents filed in a pre-decree case must be delivered personally to the other party. The easiest method is to hire a process server, however the Sherriff’s Office can also serve process as well and they are less expensive. Post-decree documents, except for contempt or protection order actions, can be mailed to the last know address of the opposing party and they should also be e-mailed as well.

What if you don’t know where the other party is and have made diligent efforts to locate them to no avail? There is another way to serve filing documents. You can serve them by publication which means publishing notice in a newspaper for a six weeks. In order to serve this way, you have to submit a motion to the court requesting substituted service and describing your efforts to locate the party. Common search methods are talking with friends and family, sending the filings to the last known address, and reviewing social media. The Motion for Publication of Summons is JDF form 1301. You can find the rules governing service of process at C.R.C.P. Rules 4 and 5.

As soon as you file a Petition For Dissolution or Allocation of Parental Responsibilities (child custody), a court order goes into effect as to you. As soon as the other party is served with process, the order goes into effect as to them. The injunctions vary slightly for a dissolution and allocation of parental responsibilities and they are printed on the petition for each type of case as easy reference.

For a dissolution, the injunction is:

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;
2. Both parties are enjoined from molesting or disturbing the peace of the other party; and
3. Both parties are restrained, without at least 14 days’ advance notification and the written consent of the other party or an Orderof 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 any policy of life insurance that names either of the parties as a beneficiary."

The first provision is designed to preserve marital property for distribution and to avoid asset transfers to deprive a spouse of the asset. Customary expenditures relate to the standard of living of the marriage. What might be commonplace for one family might be extravagant for another. The second provision is intended to minimize displays of animosity surrounding the dissolution. The third provision is intended to maintain insurance coverage to avoid a devastating loss to a party during the course of the dissolution. There is also an expectation that the parties will maintain the "status quo" of expenses to the extent possible so that one party is not cut off from necessary resources. The ability to cover status quo expenses can be impacted by the cost of creating a second household during the pendency of the dissolution as it is more expensive to maintain two households than one.

For an allocation of parental responsibilities, the injunction is:

• Do not sell, transfer, assign, borrow against, hide, or get rid of any marital property without permission of the other parent (or party) or the court. You may use your income for your usual business expenses and your usual life necessities.
• Do not disturb the peace of the other parent or parties in this case.
• Do not take the child(ren) in this case out of the state without permission from the court and/or the other parent (or party).
• Do not stop paying, cancel, or make any changes to health, homeowner’s, renter’s, automobile, or life insurance policies that cover the child(ren) or a party in this case or that name a child or a party as a beneficiary.

Exception: You may make changes to insurance coverage if you have written permission from the other parent or party or a court order, and you give at least 14 days’ Notice to the other party. C.R.S. § 14-10-107; 14-10-108."

The provisions and purposes are similar here except that in any case where children are involved to include dissolution, the children can not be removed from the state by either parent without the consent of the other parent or a court order. The intent of this provision is that a parent will not flee with a child to avoid imposition of a court order regarding the child. If a parent does remove the child after they have received notice of a dissolution with children or an allocation of parental responsibilities, the court can order that parent to return the child to the state.

A knowledgeable and experienced divorce and family law attorney can guide you through Colorado Springs divorce and family law matters by negotiating, mediating and litigating. Give yourself the benefit of hiring one. This allows you to focus on moving on to a better future instead of spending your time attempting to navigate complex legal rules and procedures.

Sabra Janko from Janko Family Law has 24 years of legal experience and protects your best interests and ensures that you are aware of your legal rights and obligations. Contact us at 719-344-5523 for a free 30-minute informational consultation or complete our online form.