The Colorado divorce statutes and court rules require that both parties in a Colorado divorce disclose certain financial information and file a Sworn Financial Statement. The disclosure requirements are automatically required in every case and are intended to provide parties transparency about the finances of the marriage. They create an affirmative duty to disclose to the other party (or their attorney) financial and insurance documentation. Both parties are expected to be an open book in terms of disclosing financial information to each other.
How do I actually exchange disclosure documents required by Rule 16.2 in a Colorado divorce?
Practically, you satisfy the requirements in C.R.C.P. 16.2 by downloading the required statements and documents from financial instructions, insurers, employer payroll, employee benefits portals, and your accountant or tax preparer. Most items can be downloaded as PDFs. We gather them into a fileshare and then send access to that to the other party or their attorney, if they have one, via email.
The disclosure documents themselves are not filed. The documents to be filed are the Sworn Financial Statement, Support Schedule, and Certificate of Compliance with 16.2 Disclosures. Some disclosure documents needed as exhibits may be filed later if they need to be used as exhibits in a hearing.
Where do these divorce disclosure requirements come from?
If you’ve just started researching divorce in Colorado or just received the Case Management Order in your newly filed case, you may have seen reference to “financial disclosures,” “16.2 disclosures,” or “Sworn Financial Statements.” The disclosure requirements are specifically described in Colorado Rule of Civil Procedure 16.2(e)(1) and (2) and listed on Form 35.1. This rule took effect on January 1, 2005 to facilitate the exchange of financial information in domestic relations cases.
When do you exchange financial disclosures and file a Sworn Financial Statement in a Colorado divorce?
The deadline to exchange mandatory disclosures and file a Sworn Financial Statement is 42 days after service of a petition under the current version of C.R.C.P. 16.2(e)(2). The deadline can also be altered by the Judge, so you must follow any orders to see if they describe different deadlines and requirements.
There are additional rules that may require additional disclosures and updating a Sworn Financial Statement later in a case. This deadline simply describes the initial requirement. There is a continuing duty throughout the case to supplement with updated documentation. Good divorce attorneys know when updated information is needed and when to request it.
What documents do I have to disclose under C.R.C.P. 16.2 mandatory disclosures?
Here is a complete description of the documents required by the current Form 35.1.
Here is a more easily readable list of the most common documents to be disclosed:
Last 3 years of tax returns,
Last 3 years of W2s and 1099s,
Last 3 months bank statements for any checking or savings accounts,
Last 3 months pay stubs from any income source, including employment or investment income,
For self-employment income, a statement for the past three months prior to filing showing gross income, business expenses, and net income.
Last 3 months’ credit card statements or any statements for any personal debt, if any,
Any insurance documentation statements, including life, health and property insurance,
Most recent statements for any retirement plans,
All real estate title documents (the most recent deed for the property is often available online for free from the county recorder's office),
Documents stating value of all real estate (appraisals, if conducted yet, or listings),
Most recent account statements for any employment benefits (like profit sharing, stock options, HSA)
Most recent account statements for any personal or business investments,
Last 3 years’ credit or loan applications,
Last 3 years’ business financial statements (if you own an interest in a business).
What do I do if my spouse is the one with access to some of the C.R.C.P. 16.2 information?
If only your spouse has access to information required under C.R.C.P. 16.2 disclosures, they will be expected to provide it. You cannot provide what you do not have access to. However, if you have access to a third party under your direction with the information (like an accountant, tax preparer, or financial advisor), you will be expected to obtain it from them. A party cannot avoid disclosures just because they don’t have personal access when they can direct a third party to make it available.
What other types of financial disclosures might be required in a Colorado divorce?
These mandatory financial disclosures are only the minimum. They are a starting point. Additional disclosures may be appropriate depending on the facts of the case.
Additional disclosures could be sought by order of the Judge. Additional disclosures can also be requested through discovery requests under rules C.R.C.P. 33 (Interrogatories) and 34 (Requests for Production of Documents). The rules on using these discovery tools vary by jurisdictions and judge.
Rule 16.2 permits limited use of these discovery tools by default under C.R.C.P. 16.2(f)(3) after the Initial Status Conference or a Stipulated Case Management Plan is filed. However, some judges require their permission before these tools may be used. A judge restricting use of discovery usually lists it in their Case Management Order or local rules.
Written discovery methods are typically used for all cases headed towards hearing and cases with complex assets.
Common Misconceptions and Questions about Financial Disclosures
The disclosure documents themselves are not filed with the court, only the Sworn Financial Statement, Supporting Schedule, Certificate of Mandatory Disclosure need to be filed.
You don’t file all the bank statements, insurance documents, real estate documents, or credit card statements you’re required to disclose under Form 35.1. See C.R.C.P. 16.2(e)(6) which describes this limitation. Note that this subsection confusingly also mentions “child support worksheets” as if they’re filed at the same time as other financial disclosures. They are filed later in preparation for hearing under C.R.C.P. 16.2(h). This is one of many examples of how this rule can be confusing to those not familiar with the practical aspects of the family law system. It would be difficult to understand the actual process from simply reading this rule.
The rule describing financial disclosures (C.R.C.P. 16.2) fails to describe anything about how you actually disclose the documents you’re required to disclose.
The rule doesn’t tell you anything about how you actually exchange these disclosures. Fax, telegram, carrier pigeon? It’s surprising, but there’s nothing there to say the actual method you provide the other party the information. The rule just declares they shall be “exchanged.”
In practice, the current method attorneys use to exchange disclosure documents is to provide each other fileshare links to access digital versions (usually in PDF format) of the documents.
Most of the documents are statements from financial institutions, which the client can download from their account with the financial institution and provide to the attorney. I do this by providing clients access to a secured fileshare to upload documents to.
If you think the opposing party failed to disclose something that exists, the burden is basically on you to complain about it and root it out.
Though a spouse is supposed to provide documents, they often do not do this. Practically you have to review disclosures and look for what may not have been provided by your spouse. The judge does no investigation themselves to check that information was properly disclosed. A party, or their attorney, must look for what might be missing from an opposing party’s disclosures. Good divorce attorneys know what information is likely to exist and look for it when it is absent from disclosures.
If items are believed to be missing, they must be identified and requested from the opposing party. If an opposing party is reluctant about making disclosures, requests to get the Judge involved can be made.
Conclusion
Financial disclosure is highly important in ensuring assets and debts are properly identified and value. There are issues not discussed here that are assessed by attorneys and deeper issues involved in each of the topics discussed above.
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No Legal Advice Intended: This information is not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems.
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