Denver Divorce Attorney Blog
Strategically helping Colorado clients through divorce & custody cases
Published on:

stock-photo-86429759-recovery-word-cloud-conceptBy Jessica A. Bryant

One significant area of concern in some Colorado custody cases is that of addiction.   More often than you might realize, allegations arise regarding drug and/or alcohol abuse by one or both parents.  When these issues arises, there are a variety of considerations, including, how to prove them, how to defend against them, and other considerations when fashioning a parenting plan.

  1. Proof: When concerns arise that the other parent in your Colorado custody case may abuse alcohol and/or drugs, it is not enough to simply appear at court and tell the judge or magistrate you have concerns regarding substance abuse.   You must be able to prove to the judicial officer that there is a problem. If the other parent has a criminal record related to drug or alcohol use (possession, driving under the influence, etc.), there are ways to obtain proof of their criminal history to provide to the court.  This can include getting records directly from the criminal case or logging onto various websites which list not only criminal charges, but also the disposition of those charges in the criminal court.

If there is no documented history of drug or alcohol abuse, you may need to request the appointment of an expert. Common types of appointed experts in custody cases are Child and Family Investigators (CFI’s) and Parental Responsibilities Evaluators (PRE’s). While CFI’s cannot complete substance abuse evaluations, they can request that either or both parents undergo drug and/or alcohol testing. For example, a hair follicle test can detect certain drugs back, approximately 90 days. You could also request, or the CFI or PRE could recommend, that one or both parents undergo an independent substance abuse evaluation. This is an evaluation completed by a trained professional, generally a Certified Addictions Counselor (CACIII), to determine whether key features of abuse are present in an individual. While a CFI/PRE conducts a comprehensive evaluation related to overall custody recommendations, a substance abuse evaluator evaluates only on the issue of substance abuse. Continue reading

Published on:

law-education-series-2-1467427By:  Sarah McCain

In this day and age of on-line, check-the-box divorce forms, the general public is often left with the impression that handling a Colorado divorce case on their own is an easy process.   Sometimes it can be, such as when the parties agree on each and every issue (though I recommend always consulting with an attorney to make sure the i’s are dotted and the tee’s are crossed).   However, there are also instances in which people choose to represent themselves in contested Colorado divorce cases.   In these instances, people often go into the courtroom believing that somehow the court is going to guide them through the process or that they will be given certain breaks or concessions because they don’t have an attorney.   This is just not true.   I have had many cases in which the other party chooses to go to trial without a lawyer.    They are generally shocked to learn that the judge will hold them to the same standard as an attorney regarding procedure and rules of evidence.

When you file a divorce or custody case, or a modification, with the court, the paperwork that you receive from the Court (generally a Case Management Order) will often set forth deadlines and standards of practice.  A party without an attorney may wonder what this means for him or her and may fail to grasp all of the deadlines that exist. Unfortunately, there is not an easy-to-read manual which lays out everything that needs to be done, and when.  The Court does its best at advising parties to the extent allowed.  However, in complicated financial or parenting time matters, the basic information given by the court may not be enough to formulate an understanding of what really is required or needed to effectively litigate. Continue reading

Published on:

stock-photo-34813364-mother-and-daughter-talking-with-counselor-during-family-counseling-sessionBy:  Curtis Wiberg

One of the most emotional issues in a contested Colorado divorce occurs when the parties do not agree on what parenting arrangements are in the best interests of the child/children.  The concerns one parent may have about the other parent and how that concern affects the well-being of the children can be hard to prove to the Court. For these reasons, Colorado enacted two separate statutes authorizing a Court to appoint an expert to look into the family situation and make recommendations to the Court as to what is in a child’s best interest, both as to decision making (legal custody) and parenting time (visitation).

One statute (C.R.S. § 14-10-116.5) authorizes the appointment of a Child Family Investigator (CFI). In essence, a CFI is a neutral, third person charged with the duty of investigation the best interest of the children and submitting a written report, with recommendations, to the court.   A CFI is often-times a lawyer, but sometimes a mental health professional.  An advantage of using a CFI is the cost, as the fees are statutorily capped at $2,750, except in extraordinary circumstances, and are usually split between the parties.  CFI’s can be used both before final orders and after, such as in a modification situation.  In post-decree divorce cases or in custody cases, if one party is indigent, the Court can authorize the state to pay that person’s portion of the CFI’s fees.   A CFI’s investigation usually involves interviewing each parent alone, a home visit with the parent and child/children, a review of the pleadings, an interview with the child if they are old enough, a review of any questionnaire the CFI provides the parent, and interviews with any collateral witnesses like extended family, teachers, or therapists. Directives prepared by the Colorado Supreme Court govern the conduct of the CFI to ensure an unbiased and thorough investigation that is well documented, among other things.  The CFI then prepares a report of his or her findings and submits recommendations to the court on decision-making, parenting time, holiday parenting time, and if appropriate, recommendations for counseling or lifestyle changes for either or both parties. Continue reading

Published on:

stock-photo-17291496-divorce-agreementBy:  Jessica A. Bryant

Parties to Colorado divorce actions often seek to resolve their case by entering into a Separation Agreement as opposed to going to a hearing and letting the court decide various issues such as maintenance (alimony), division of property/debts, child support, custody and/or parenting time. Many times, parties do not consult attorneys and simply use the judicial branch website Separation Agreement form and check the boxes dividing property and debt. Unfortunately, this can often lead to future unanswered questions and unenforceable orders and parties can end up spending more time and money trying to resolve these questions and issues, than if they had just consulted with an attorney in the first place to ensure that the Agreement contained various precautionary measures. Some tips to keep in mind when entering in an agreement regarding your Colorado divorce case are the following:

 

  1. Deadlines are Important: It is one thing to state that one party will be responsible for taking a particular course of action, such as paying off a debt, changing title to a particular property item, returning a particular property item, etc.   However, if there is no date by which such action must be done, it becomes very difficult to enforce the agreement. The way a Separation Agreement is enforced is by filing a contempt action, asking the court to order certain remedies if a party is found to be violating a court order. If there is no deadline for compliance, though, it cannot be argued that the party violated a court order by failure to act within the ordered time frame. If a significant amount of time passes, it is possible the court may view it as a failure to comply but, to avoid any question or uncertainty about how long to wait to seek enforcement, it is best if every provision requiring action by a party have a specific deadline.

Continue reading

Published on:

stock-photo-26487950-house-in-coloradoFREE Divorce and Real Estate seminar! June 15, 2016 at 6 p.m. 18801 E. Main Street, Suite 250, Parker. Call Plog & Stein at (303) 781-0322 to reserve your seat or email us through the firm website.  Seating is limited.

In conjunction with a local, Parker Colorado real estate agent who is certified as a specialist in divorce and real estate, and a local mortgage broker, Stephen Plog will be speaking at a bi-monthly real estate seminar focusing on real estate and divorce.

Mr. Plog’s portion of the seminar will discuss the implications of Colorado divorce and real property, whether related to a primary residence, investment property, or other real estate.   When dealing with divorce and your home, there are various outcomes which can happen.  There are also many things to consider, such as whether to keep the property or sell it, how to deal with a jointly financed property, and more.

Learn your options and rights when it comes time to resolve how your home will be handled as part of the dissolution of your marriage.  Colorado’s real estate market is booming, including in Douglas County. Making sense of how to handle your real property in this market matters.   Understanding how to keep the equity you are likely entitled to is a key part of any divorce negotiations or litigation. Continue reading

Published on:

By:  Sarah T. McCain

stock-illustration-19023659-big-argumentIn Part 1 of this article, I discussed the positives of good communication between spouses during a dissolution of marriage or a custody case.  While a lot can be accomplished through maintaining amicable communications with the other party, it is important to know when communications have turned for the worse and when to speak up against those inappropriate communications. Unfortunately, often during any Colorado family law case, communication can take a negative turn, causing more anxiety and conflict for the parties.  I often tell clients that they may see the worst version of the other party while the case is pending. It’s important to be prepared in terms of how to handle negative communications for purposes of protecting both your interests in your case and your sanity.

First, name calling and obscenities are never appropriate, especially in those cases involving custody or visitation.  Upon receipt of such negative messages, it is easy to fall into the trap of wanting to respond in kind.  It’s important to remain level headed and to not respond in a like manner.  Often, these nasty messages do not contain vital information or requests and, therefore, do not require a response.  If a response is necessary, it is important to remember that all communications are potential exhibits which the court/judge might see at trial.  As such, it may be necessary to respond to those items that are necessary to respond to and to then simply ignore the insults and intimidation.  This can turn into a complicated situation wherein it is best to have a your attorney determine when, and how, best to respond to what may be deemed inappropriate communication.   If communications get to hostile, your attorney can always get involved, thereby ceasing the direct insults or hostile communications.  I’m always willing and ready to step in when needed, though hope to keep costs down by staying out of the fray. Continue reading

Published on:

courthouse-1204573By:  Curtis Wiberg

In my previous blog post on the subject of Colorado family law appeals, I blogged about appellate strategies and standards of review for appealing domestic relations case rulings.  In Part 2 of this article, I discuss appellate procedures.   As a Denver area family law attorney who also practices appeals, I cannot stress enough how important it is at the appellate level to make sure procedures and deadlines are adhered to.

In any appeal, it is imperative to pay attention to deadlines, because any missed deadline along the way can be fatal to your appeal. The first deadline is the appellant must make is to file a Notice of Appeal with the Court of Appeals (with a courtesy copy to the District Court), within 49 days of the filing of the issuance and submission of the final orders of the District Court. This deadline is a jurisdictional prerequisite, so if this deadline is missed, the ability to appeal is lost (absent a very hard to prove standard requiring a showing of “excusable neglect”).  If you file a Motion for Post-Trial Relief under C.R.C.P. 59, that 49 day deadline begins to run from the Court’s order addressing this motion. Note that if a Court does not issue an order and remains silent on a Rule 59 motion, the motion is considered denied after the passing of 63 days from the filing of a Rule 59 motion.  This is a subtle deadline even some misinformed Colorado attorneys might miss. Continue reading

Published on:

stock-photo-24348836-mothers-hand-holding-kids-hand   By: Jessica A. Bryant

Over the course of roughly the last decade, Denver area custody attorneys have seen a gravitational shift in most metro area family law courts towards 50/50, equal parenting time for both parents. This does not mean equal visitation occurs in every case, but it has become more of the norm. This shift clearly indicates that the judiciary has accepted and adopted the notion that equal time with each parent is in a child’s best interest, absent exceptions. As a family law practitioner, I cannot help but ponder how soon the Colorado legislature will codify this custody trend?

In the past two years, two separate bills have been introduced in the Colorado House of Representatives seeking to establish equal parenting time as a fundamental right of parents. The first bill was introduced in 2015 as Senate Bill 15-129. This Bill sought to make significant changes to the current statute governing the allocation of parental responsibilities (C.R.S. 14-10-124). In part, this Bill sought to include the following language in the Colorado statute determining the best interests of the child: “courts should require compelling evidence before diverging from a substantially equal allocation of parental rights and responsibilities.” The Bill went even further though and specific stated that the court “shall enter an order for parenting time that awards substantially equal parenting time to each party unless the court finds, after a hearing, that substantially equal parenting time with one of the parties would endanger the child’s physical health or significantly impair the child’s emotional development.” This is a major change from the current statutory language. Continue reading

Published on:

By: Stephen J. Plog

suitcase-1557217If I had a nickel for every time someone asked me whether they could leave Colorado with their kids and if they would get in trouble for doing so I would be a rich man. I suppose I have earned a few nickels answering these types of questions over the years. Having handled more Denver area custody cases than I can count, I have learned that no two cases are exactly alike. Though facts may differ, the applicable laws stay relatively constant.

When asked by a prospective client whether they can just leave Colorado, with the kids, without legal ramifications, I am compelled to ask an array of questions tending towards an appropriate answer:

1. Has a court case been filed?
2. If the case has been filed by the other party have you been served?

I ask these two initial questions because Colorado Statute, specifically C.R.S. 14-10-107 and C.R.S. 14-10-123 prohibit removing children from Colorado while a case is pending. The filing party is immediately under these statutory injunctions. The other party is subject to these injunctions upon being served. Violating these statutory prohibitions and leaving the state can be disastrous to any case and may lead to the issuance of an emergency order requiring return of the children (and likely placing them in the care of the other party). If the client answers no to these two question I am then compelled to dig deeper to further analyze the situation. Continue reading

Published on:

By W. Curtis Wiberg

stock-photo-25889598-colorado-supreme-courtHaving handled divorce and custody cases for over two decades, including 14 years as a Colorado family law attorney, I have litigated more cases than I can remember.   Cases that don’t settle ultimately go to a hearing or “trial” in front of a judge or magistrate.   After a Colorado divorce or custody case goes to trial, it’s likely that one party will leave the courtroom feeling like they “lost” or weren’t heard or treated fairly.  Frankly, trial court judges sometimes do make mistakes. Recognizing that basic truth, the judicial process sets up a system where a judge’s mistake can be corrected. That process entails appealing a judge’s ruling to a higher court.

Proceeding with a Colorado appeal is a specialized process with its own sets of rules, procedures and standards.    As such,  if you are thinking about appealing a judge’s ruling or defending against an appeal, it’s important to find an attorney who has experience practicing in the appellate courts.

Generally, Colorado family law appeals are unsuccessful due to the standards of review employed by appellate courts. The standards of review grant a trial court judge a lot of leeway or discretion on certain matters. For instance, appellate courts have to find “clear error” on matters concerning the credibility of witnesses.  So if the appeal revolves around “why did the judge not believe me?”, the appellate court is unlikely to set that credibility determination aside unless the weight of other evidence is contrary to the judge’s finding. Similarly, if a statute or court rule gives the trial court discretion (as it does when fashioning an equitable distribution of property and debt, for example), the appellate court cannot overturn that award unless it finds the trial court committed an “abuse of discretion.”  The same holds true in cases dealing with custody or visitation (parental responsibilities).  Keep in mind that with discretion comes a range of outcomes which are not uniform.  A judge in a Douglas County divorce case may rule completely differently on a topic from a judge in an Adams County case.    Differing rulings or results do not necessarily equate to judicial error.

Continue reading