stock-photo-35514910-big-pile-of-dollarsGoing to see a lawyer is like going to the doctor. None of us want to do it. Just like we don’t ask to be sick, we don’t ask to have legal problems. In reality, we will all need the assistance of a doctor at some point over the course of our lives. Likewise, may of us will need the services of an attorney at some point in our lives. For a large portion of the population that need will arise within the setting of a divorce or custody case. Just like going to the doctor, no one relishes the notion of paying an attorney to help fix their legal problems. Contrary to common belief, there is no statute indicating that the “loser pays.”  However, fortunately there are some instances in which statute provides litigants an opportunity to recoup attorney fees in a Denver divorce, custody, or child support case, depending on the facts and circumstances.

Below are some of the primary or common situations in which one might collect, or recoup, some of his or her attorney fees when going through a Colorado family law case.

1. Pursuant to C.R.S. 14-10-119, the court in a divorce, child support, or custody case has the authority to allocate fees and costs. Specifically, statute indicates that the court can, after considering the financial resources of the parties, award attorney fees and costs for time periods before, during, or after the case. Section 119 only applies to cases brought under “Article 10,” which deals specifically with divorce, custody, and child support. C.R.S. 14-10-119 is not applicable to juvenile cases, such as a paternity case. Section 119 is utilized when there is a significant income or asset disparity between the parties and there is case law setting forth the notion that the purpose of this section is to equalize or balance the positions of the parties related to the cost of litigation. In essence, statute makes provisions for leveling the playing field in a finical sense so that the party with significantly greater resources cannot just steamroll over the other. Section 119 does not assign fault and should not be invoked based on bad behavior of the other party. One should keep in mind that fees or costs under 119 can be sought while the case is pending and one need not wait until the case is done. Litigants who are similarly, or even roughly, financially situated should not anticipate an award of fees under 119, unless one has an attorney and on does not. In those instances, a court might assess fees.

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In the first two parts of this article, I focused on the significance of a contested Denver area divorce or custody hearing and the first procedure steps in terms of sequence and timing. In those posts, I discussed opening arguments, testimony, and what can be expected at each of those phases. This final segment will address the wrapping up of testimony, into closing arguments, and the potential for the court to rule from the bench. As indicated at the end of part two, I will also briefly address the rules of evidence as relates to testimony.

As seen in movies or on television, a contested hearing entails the presenting of evidence to the court. It will generally include the parties getting up onto the stand and testifying. It may also include other witnesses. In an Arapahoe County custody case, or any other divorce or custody case in Colorado, the hearing will be held in front of a judge, not a jury. In a family law case, the judge is ultimately going to be the one making the decision based on the facts presented as evidence. Aside from making that final ruling, the judge will also serve almost as a referee related to what can and cannot be admitted or heard, based on the rules of evidence. Throughout the hearing, the attorneys may make various objections while a witness is testifying. The primary ones will be relevance, hearsay, calls for speculation, leading the witness, or lack of foundation. For evidence or testimony to properly come in it must comport with the rules of evidence. The primary one a witness will be faced with is hearsay, which will generally entail that witness trying to testify regarding what hear or she heard someone else say. It will always be the attorney’s job to deal with evidentiary issues and to try to make sure testimony is heard. In reality some statements might never get into evidence.

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hands-1402625-m-2In Colorado, both parents must contribute to child support, though the amount paid and who pays it is based on the parents’ income and time spent with the child. The parent that cares for the children less than 50% of the time usually must pay child support to the other parent for the benefit of the children. Unfortunately, there are many cases when a parent ordered to pay child support fails to comply, leaving the burden of enforcing the child support order to the other parent. This can lead to bitterness and hostility between parents who may have other issues between them as well. Like other court orders, child support orders can be enforced.

Child support enforcement remedies include court actions and administrative actions, but you can only enforce a child support agreement that is part of a court order. For example, if you have informally separated from your spouse and verbally agreed that he will pay financial support to the children, you cannot enforce that. Assuming that you have a court order, the most common enforcement method is probably filing a motion for contempt with the court that ordered your ex-spouse to pay child support.

Contempt can be punitive or remedial. Punitive contempt asks the judge to sentence the other parent to jail or impose a fine regardless of whether the parent catches up on overdue payments. You will have to prove beyond a reasonable doubt that the other parent could have paid child support, but refused to do so, and so this is best reserved for truly egregious cases. When you ask for remedial contempt, you ask the judge to place the parent in jail unless he or she pays some or all of the child support that’s owed. This is a way of forcing the other parent to pay.

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In the first part of this article, I ventured into the significance of a full blown court hearing, as opposed to a status conference. I also started discussing the beginnings of that contested Arapahoe County divorce or custody hearing. To refresh, my usage of the term “full blown” hearing equates to a contested, evidentiary hearing, in which witnesses, including the parties, will be called to give testimony. Documentary or other evidence may also be submitted to the court for consideration. At the end of such a hearing, the judge or magistrate will render a decision. The conclusion of Part 1 of this post touched on opening arguments, followed by brief discussion of testimony and who goes first. To correct, or clarify, a prior statement, in a pre-decree divorce, custody, or child support case, the “petitioner” goes first. In post-decree hearings, such as might relate to a motion to modify child custody, the “movant, meaning the party who filed the underlying motion, gets to go first, regardless of whether they are designated as the “petitioner.

Going first in a hearing can have its advantages, or pitfalls. Whether in law, business, or social settings, first impressions can have a lasting impact. Thus, it is important for both party and attorney to be ready to effectively present the case. As both parties are fair game for providing testimony on the stand, sometimes it can be advantageous to call the other party first, thereby getting the first bite at the proverbial apple by getting them to say things favorable to your side. Doing so can also potentially derail all efforts made preparing to testify, which may have been rehearsed between counsel and client. Though calling the other side right out of the gate can be an effective tactic, the norm is that the side going first will call their witnesses first and leave the other party for their own attorney to deal with.

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roses-n-rings-1362457-mWhile it’s not romantic to consider what will happen if the marriage ends, for many Colorado residents, it makes sense to get a prenuptial agreement drafted so as to protect income or assets. Prenuptial agreements can address property division and debt, obligations related to wills or insurance policies or pensions, and spousal maintenance. They cannot address what will happen to the children, because the courts must consider the children’s best interest regardless of what spouses agreed before the marriage.

Under the Uniform Premarital and Marital Agreements Act, there are new requirements for prenuptial agreements and marital agreements signed on or after July 1, 2014. The law doesn’t affect agreements signed before that. In general, the law gives greater protection to a spouse that may not fully understand what rights he or she is giving away, though its terms, like many laws, leave some room for judicial interpretation that may lead to less predictable outcomes for a time.

Under the new law, a premarital agreement is unenforceable if a party against whom enforcement is sought proves: (1) a party’s consent to the agreement was involuntary or the result of duress, (2) the party didn’t have access to independent legal representation, (3) the agreement didn’t include a notice of waiver of rights at the time signatures were obtained unless the party had independent legal representation; or (4) the party didn’t receive an adequate financial disclosure.

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As I often indicate, each Denver area divorce or custody case is unique, with its own twists, turns and variables which can come to play and, potentially, have an impact on the outcome of a case.  An experienced Denver family law attorney knows how to deal with those nuances to his or her clients’ advantage, when possible. A seasoned attorney dealing with a Douglas County divorce knows that the outcome might be different from one in Jefferson County. Beyond the subjective intricacies that each case may hold, there are also basic fundamentals in family law cases which hold true, regardless of which county a case is docketed in. One of those relates to court procedure, particularly when it comes to contested hearings.

In all Denver metropolitan area divorce or custody cases, an initial status conference is required. This is an initial meeting with the court for purposes of assessing where the case is at, is headed, and what needs to be done to get there. There may also be secondary status conferences, whether in person or by telephone. In some cases, such as a contempt of court matter, there will be a perfunctory advisement hearing, which will be the first, and lesser, interaction with the court. Each of these lesser court appearances is important. That being said, none are the final hearing each person anticipates as the potential end point of his or her divorce or custody case.

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sunrise-in-the-mountains-1425523-mRecently, an interesting story was in the media about a Muslim convert that posted threats against South Park for its cartoons about the prophet Muhammad and then tried to join a Somali terror group, using his baby at the airport to try to appear less suspicious. He was put on the no-fly list and sentenced to 25 years in prison. The baby, who now lives with the man’s mother, is now the subject of a custody dispute being heard in federal appellate court. The man, who is imprisoned in a super-max prison, is suing his mother, who doesn’t share his conservative Islamic beliefs, and the FBI for monetary damages on the grounds that they are interfering with his parental rights. While most Colorado child custody disputes do not involve this level of intrigue, the issue of religious beliefs sometimes does play an important role.

A child’s religious upbringing can be determined during the course of divorce proceedings as part of the question of “parental responsibility”, known as custody in other states. Parental responsibility has three aspects: (1) who will make important decisions for the child, (2) who the child will live with, and (3) visitation for a non-custodial parent. The first element, considered legal custody, can be sole or joint, and it has the most impact on a child’s religious upbringing.

If only one parent will make important decisions for a child, it will probably also be the primary custodial parent with whom the child lives. When a child splits his or her time between the parents, the issue of who gets to control a child’s religious upbringing may be more fraught. One parent may have an intense religious faith not shared by the other parent; in some cases, that is a reason for the divorce as well. As in the news item shared above, a parent who converts may no longer have the same views as others to whom he or she was previously close, and may not want the child to be influenced by somebody not of that faith.

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From time to time, in my limited spare time, I read. As the inner nerd in me still exists, that includes looking at odd topics related to divorce laws in other places. Colorado is one of fifty states. Though our laws have similarities to other states, they also differ. To Denver divorce attorneys, our statutes makes sense, though not always, largely based on familiarity and the fact that change often comes at a snails pace. Over the years I have read horror stories from other states, such as Massachusetts, which apparently does, or did, factor in new spouses’ incomes when recalculating alimony (properly termed maintenance in Colorado). I recall a story a few years ago from somewhere back east, in which a man was ordered to pay alimony at the time of his divorce, with his wife ultimately remarrying and his alimony stopping. Once the wife divorced her second husband, she was able to go back and get alimony again from her first husband. Upon reading that story, I concluded that payers of alimony in Colorado should thank their lucky stars that alimony terminates upon remarriage of the payee and cannot be revived. This was, perhaps, the oddest article I had seen until March of 2015.

While browsing the internet in my efforts to know more than I did the day before, I came across an article related to divorce and property that takes the proverbial cake. The specific article related to not another state, but another country, England. In this article regarding a British divorce, a husband and wife were married in the early 1980’s and divorced in the early 1990’s. Presumably all issues of property division and support were resolved at that time. As U.S. law is rooted in English law I could not help but presume that procedures and notions of fairness would be similar to ours. Those presumptions were wrong. In this case, during the next roughly 20 years, the ex-husband has started some sort of energy company and amassed a fortune in excess of $100 million pounds (pounds being worth significantly more than our dollars). In the article, the ex-wife, of far less means and perhaps down on her luck, was able to convince a British court that she should be able to come after her husband years later, essentially must because he had made out like a bandit and she had not. The British court, seeming to be at the appellate level, remanded the case back to the trial court, having ruled that she could make a claim against the fortune he had amassed subsequent to the divorce and division of assets.

Upon concluding the article, I sat bewildered and amazed, imagining the dramatic and chaotic state the Colorado family law community would be left in should our divorce laws regarding division of property take a turn towards the bizarre such as they have across the pond. In Colorado, pursuant to C.R.S. 14-10-113, property is divided at the time of the divorce decree, meaning when the initial divorce case is over. Beyond potentially filing an appeal, or perhaps in cases in which an asset is hidden or not disclosed, there is no going back to seek property amassed after the divorce from the former spouse. If our laws mirrored those in the English case, divorce would just be a new chapter in a life long saga of back and forth with the courts, as either spouse waited to pounce on the post-divorce good fortune of the other. A decision like that in the British case would turn divorce law in Colorado on its head. Fortunately, property divisions are final and our courts recognize that but for lingering issues of support which can arise, property divisions are final and people are given the latitude to move on with their lives.

As I look across the ocean, moving east to west, it seems that sanity mapped up with the law grows the father one moves towards the Rocky Mountains. To learn more about your property rights and representation in a Colorado divorce, contact an experienced attorney.

3626966782_b489fc70af_z.jpgColorado courts have jurisdiction over children who reside within this state, meaning that they can make orders regarding allocation of parental responsibilities and child support. State law is equipped to address interstate custody disputes, but international disputes require the assistance of a treaty signed by fewer than half of the world’s countries. A Colorado appellate court applied elements of state, federal, and international law in a ruling that affirmed an order returning two children to their father in Canada. In re T.L.B. and M.A.B., 272 P.3d 1148 (Colo. App. 2012).

Most U.S. states, including Colorado, have enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See C.R.S. 14-13-101 through 14-13-403. This law guides courts in determining which state has jurisdiction over a case and resolving conflicts between different states’ laws. The Hague Convention of the Civil Aspects of International Child Abduction (the “Convention”) deals with international custody disputes. The United States signed it in January 1981, and the Senate ratified it in April 1988. See 42 U.S.C. §§ 11601 through 11611. The Convention assists countries in child custody disputes that cross national borders, provided that both countries have signed and ratified it. As of the end of 2014, this includes 93 of the world’s 195 countries.

The Convention’s primary function is to preserve whatever status quo existed before an allegedly wrongful removal of a child from his or her country of residence. The new country must honor the original country’s custody arrangement and promptly return the child. Some exceptions apply, including a finding by a court in the new country that the return would put the child at “grave risk” of “physical or psychological harm” or “otherwise place the child in an intolerable situation.” Convention art. 13(b).
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Sao_Paulo_Stock_Exchange.jpgIf the parties to a divorce have one or more minor children, Colorado law generally requires their divorce decree or orders to include provisions for the payment of child support. If they cannot agree on child support terms, a judge must decide based on a series of factors set forth in the Colorado Revised Statutes. From time to time, disputes arise over whether certain types of income, particularly investment income, should be included in child support calculations. While the general rule is that investment income should be included in child support calculations, the Colorado Supreme Court has identified some situations in which this may not be the case.

“Investment income,” broadly speaking, refers to income received from something other than employment. Most investment income is “passive,” as opposed to wages, salaries, commissions, and other forms of “active” income. The legal definition of “gross income” for child support purposes, found in C.R.S. 14-10-115(5)(a), includes many forms of income ordinarily considered investment income, such as interest, trust income, annuities, royalty payments, capital gains, dividends, and certain types of pension or retirement payments.

Courts must take these types of investment income into account when determining child support. The Colorado Supreme Court reversed a lower court order in In re Marriage of Klein, 671 P.2d 1345 (Col. 1983), finding that the court failed to consider the father’s investment income when calculating child support. The mother had considerably fewer resources available to her than the father, and although the father’s “active” income was relatively low, he had regular income from passive sources.
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