Men’s Rights During Divorce

For many years, family law was not particularly friendly to men. Courts often relied on antiquated gender roles to make decisions about alimony, child support, and custody, and this usually meant an unfair outcome for a divorcing husband or father. Theoretically, Colorado law now puts men and women on equal footing in divorce proceedings, but this is not always true in practice. This article provides an overview of men’s rights during divorce and how an attorney can help protect those rights.

Table of Contents

• Shifting Roles
• Men’s Rights and Parenting Time
• Men’s Rights and Child Support
• Men’s Rights and Spousal Maintenance
• Men’s Rights and Property Division
• Let Us Help You

Shifting Roles

Custody, or parenting time, is one of the most common issues regarding men’s rights during divorce. Colorado courts recognize that children benefit from having a strong, consistent relationship with both parents. However, this has not always been the case.

The ‘Tender Years’ Doctrine

Courts will not deprive the mother of the custody of her children of tender years, unless it is clearly shown that she is so unfit a person as to endanger the welfare of the minors. It is the universal opinion that a mother’s love, care and affection for a child of tender years are the most unselfish factors in human relations, and that the child is not to be deprived thereof unless for a very good reason, founded on lack of moral fitness and proper home surroundings. Pearson v. Pearson, 141 Colo. 336, 337, 347 P.2d 779, 781 (1959)

At one time, Colorado family law courts based most custody decisions on the tender years’ doctrine. The tender years are generally regarded as birth to four years old. This legal doctrine was predicated on the belief that a young child was better off with his or her mother. Society at the time believed that a woman’s primary role was as a mother and homemaker and that a woman was more capable of caring for and nurturing a young child than a man was. source: The Practitioner’s Guide to Colorado Domestic Relations Law § 4.3 (2014)

As a result, a father could only gain custody of his child if he first proved that the mother was unfit.

Best Interests of the Child

As society shifted away from archaic gender roles, so too did family law. More women began entering the workforce, which changed their traditional roles as homemakers, wives, and mothers. Additionally, advances in psychology prompted a deeper understanding of the father’s role in nurturing a child, as well as the child’s psychological needs.

Over the years, Colorado family courts moved away from the presumption in favor of the mother to an unbiased best interests standard. Current Colorado law specifically forbids courts from presuming that one parent is more “fit” to raise a child merely because of his or her gender. Colo. Revised Statutes § 14-10-124(3).

This law effectively overturned the tender years doctrine. The Practitioner’s Guide to Colorado Domestic Relations Law § 4.3 (2014)

However, “a court may find, based on all of the facts, that it is in the child’s best interests to place the child with his or her mother a majority of the time. This result is in no way a violation of C.R.S. § 14-10-124(3). The specific factors relevant to the particular child, and not gender alone, shape best interests determinations.” The Practitioner’s Guide to Colorado Domestic Relations Law § 4.3 (2014)

Men’s Rights and Parenting Time

It is the well-being of the child, rather than reward or punishment of a parent, that must guide every aspect of a custody determination including visitation. In re Marriage of Sepmeier, 782 P.2d 876, 877 (Colo. App. 1989)

Colorado law recognizes that there is no one-size-fits-all approach to parenting time (sometimes referred to as “custody.”) No two divorce cases are alike, and the same applies to parenting plans.

Colorado courts rely on the presumption that both parents are entitled to reasonable parenting time unless the child’s physical health or emotional development would suffer as a result. Reasonable does not necessarily mean equal, however.

Men, like women, have a constitutional right to raise their children how they see fit. However, while the parents’ wishes factor into the court’s decision, they do not trump the child’s best interests. As a father, you must show the court how you will foster a stable, healthy environment for your child’s development — just like the mother.

Men’s Rights and Child Support

This is perhaps the most hotly contested issue involving men’s rights during divorce. Child support is typically paid to the parent who has primary physical care of the child.

If you are not granted primary physical care of your child, you likely will have to pay child support. However, the amount of support may be reduced based on the physical care/parenting time schedule.

Men’s Rights and Spousal Maintenance

Similarly, since individualized hearings can determine which women were in fact discriminated against vis-a-vis their husbands, as well as which family units defied the stereotype and left the husband dependent on the wife, Alabama’s alleged compensatory purpose may be effectuated without placing burdens solely on husbands. Progress toward fulfilling such a purpose would not be hampered, and it would cost the State nothing more, if it were to treat men and women equally by making alimony burdens independent of sex. Orr v. Orr, 440 U.S. 268, 281-82, 99 S. Ct. 1102, 1113 (1979)

In years past, our culture expected men to be the primary breadwinners of the family. Therefore, men were typically expected to pay spousal support, also known as spousal maintenance and alimony.

In 1979, the U.S. Supreme Court ruled that alimony was gender-neutral and should be awarded accordingly. Still, the New York Times reported in October 2021 that far more women than men seek and receive spousal support.

Furthermore, the Times reported, men who do seek spousal support are often harshly scrutinized by judges. When judges do award men spousal support, they frequently do so for a shorter amount of time, expecting men to return to the job market faster than women.

What Colorado Law Says About Alimony

Colorado law provides specific guidelines for a maintenance award if you and your spouse were married for three to 20 years, as long as your combined annual adjusted gross income does not exceed $240,000. C.R.S. § 14-10-114(3)(b)

If you were married for more than 20 years, the court may award maintenance for either a set amount of time or indefinitely. C.R.S. § 14-10-114(3)(b)(II)(A)

For marriages lasting less than three years, the court may award maintenance if “given the circumstances of the parties, the distribution of marital property is insufficient to achieve an equitable result.” C.R.S. § 14-10-114(3)(h)

Men’s Rights and Property Division

In feudal times, land was power, and the husband controlled this power. All of the wife’s property passed to the husband’s control at the marriage. It was often said, “At common law, the husband and wife were one, and that one was the husband.” … Today, married women have the same control over their property as do single women and men. The Practitioner’s Guide to Colorado Domestic Relations Law § 6.1 (2014)

Colorado is a “dual party” equitable division state. Equitable does not mean “50/50” — it means “fair.” What the courts deem equitable depends largely on the specifics of your divorce case.

Colorado’s adoption of the Uniform Dissolution of Marriage Act (C.R.S. § 14-10-113) considers all property acquired during the marriage — with a few exceptions, such as gifts and inheritances — to be marital property. Family law courts must equitably divide all marital property between the husband and wife.

How Colorado Courts Divide Marital Property

The equitable distribution of property requires a three-step process:

1. the classification of marital or separate property
2. the valuation of the property; and
3. the equitable distribution of the property.

C.R.S. § 14-10-113(2)

First, the court must distinguish between marital property and separate property. For example, if you bought your car prior to marrying your spouse, your car would be considered separate property and therefore not subject to division.

Once the court has correctly classified all property, it must then determine how much that property is worth. Then it can decide who gets what.

What Courts Consider When Allocating Marital Property

Colorado courts consider the following factors when splitting marital property:

1. each spouse’s contribution to the acquisition of the marital property, including contributions as a homemaker
2. the value of the property set apart to each spouse
3. each spouse’s economic circumstances, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse with whom any children reside the majority of the time; and
4. any increases or decreases in the value of the spouse’s separate property during the marriage or the depletion of the separate property for marital purposes.

C.R.S. § 14-10-113(1)

Note that this is not an exhaustive list, and the court may consider all relevant factors.

Let Us Help You

Divorce court can be a hostile place, but we can help. Our family law attorneys will zealously advocate for you to ensure that you do not get an unfair shake because of your gender. Call 303-688-0944 today to begin your case assessment.