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

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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

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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.

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stock-photo-34334226-retirementAs experienced Colorado divorce attorneys, we deal with all aspects of asset division.  This can include division of real property, personal property, investment accounts, retirement accounts, and almost any other type of property you can imagine.  Beyond the normal questions that arise when dividing property and debt in a Denver divorce case, PERA (Public Employee Retirement Account) accounts come with additional questions and issues that need to be resolved. First, under Colorado law, a court cannot forcibly divide a PERA account. This means that, without agreement, the judge or magistrate hearing your divorce case cannot give your spouse a portion of your PERA account. This is different than any other type of retirement account which can be divided by a special order to avoid adverse tax consequences (unless you or your spouse want to withdraw funds immediately, in which case, the taxes and penalties will still apply). However, this does not mean that, if your spouse is the one with the PERA account, this is the end of the analysis. While Colorado judges and magistrates may not be able to forcibly divide a PERA without agreement of the parties, they can give the non-PERA spouse more of the other marital property or less of the marital debt to off-set the other spouse’s receipt of the entire PERA. Additionally, the court can order the spouse with the PERA to pay a certain amount to the other spouse each month upon retirement. Thus, effectively the main difference is that the PERA-receiving spouse is responsible for making the payments to the other spouse, as opposed to PERA making the payments directly, which could lead to tax complications or questions.

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By:  Sarah T. McCain

stock-illustration-21882614-vector-communication-conceptWith years of experience and countless Colorado divorce and custody cases under my belt, I have heard almost every allegation imaginable that an experienced Colorado divorce attorney might hear. Often times, those allegations entail one party to a divorce alleging that the other has said this, that, or the other thing.   As they say in the movies or on TV, “anything you say can and will be used against you in a court of law.”   Some parties are aware of this adage and understand what they say to their soon-to-be former significant other can be used as evidence.   Other’s do not and will say the most outlandish, hurtful, or damaging things, oblivious of the fact that their words can be used against them, whether related to financial issues or custody.   This holds true for verbal and written communications, such as emails or text messages.

Thought the concept of your words being used against you may be known to some, I generally make sure to inform each new client I meet with of this concept and to arm them with knowledge regarding how to conduct themselves and what to say or not say to their spouse, or the opposing party in a custody case. Words matter.   The legal concept behind this issue ties into the fact that under the Colorado Rules of Evidence regarding hearsay, which do apply to family law cases, the statements of a “party opponent” can be used against them in court.

The balancing act exists in that communication is a must, even in a devolving relationship. So answering my title question, YES, it is absolutely appropriate to continue to speak with your spouse with a few exceptions and limitations.

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By: Jessica A. Bryant

stock-illustration-37056990-usa-mapAs seasoned family law attorneys, we see various intricate issues which arise in Denver area divorce, custody, and child support cases. This can include issues related to interstate and multi-state jurisdiction. In today’s mobile society, it is not uncommon for both parties and the child(ren) to move out of the state that entered the initial child support order before the child becomes an adult. When a party leaves the state that entered the initial child support order, and moves to Colorado, several questions arise, most importantly: can Colorado enforce my child support order, can Colorado modify my child support order and, if Colorado enforces and/or modifies my child support order, which state’s law applies?

Enforcement

Pursuant to Colorado Revised Statutes, Title 14, Article 5,  Colorado can enforce a child support order entered in another state. One way such can occur is if an income-withholding order is sent to a Colorado employer. In that case, provided the technical requirements of an income-withholding process are followed, the Colorado employer must comply. The benefit of this enforcement remedy is that the child support order does not first have to be registered in Colorado before the income-withholding is pursued. A party can also register the child support order in Colorado for enforcement. As registration for enforcement requires the filing of a Petition, with specific requirements, along with a certified copy of the child support order, it is recommended you seek the assistance of an attorney to ensure the order is properly registered. Once a foreign (out of state) child support order is entered, an wide array of remedies become available for those seeking to enforce and collect.

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In a Colorado divorce, reasonable financial needs do matter in a determination of alimony. Reasonable needs matter for both parties, though not to the same degree as previously stated in statute. Much has been made of the new 2014 alimony (properly termed “maintenance”) formula, with individuals often jumping right to the formula without so much as a review of the initial factors in determining maintenance. This can include both family law attorneys and judges alike.

The first part of the statute regarding maintenance, C.R.S. 10-14-114, still includes a review of whether an individual requires maintenance to meet their reasonable needs. The Court must first make this determination of such, which requires a review of whether an individual has sufficient income to cover their reasonable needs or has enough property, either marital or separate, to meet these needs.

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As a Denver area divorce attorney, I’ve often heard the commonly cited statistic that nearly half of all first marriages in the U.S. end in divorce, but the many factors that go into this number are far less well known. Looking at more specific numbers across demographics paints a much more nuanced picture of divorce trends.

Divorce Trends in the United States

The divorce rate has steadily been dropping in the U.S. since 1996 for a variety of reasons, not the least of which is that more people are choosing not to get married, or are delaying marriage until a later, more mature age. Still, divorces are occurring at a rate of roughly one every 36 seconds, amounting to 2,400 divorces per day, or 876,000 per year, according to the U.S. Census Bureau.
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In divorce and other family law proceedings, the attorney you choose can make the difference in your case. In light of this, it is a good idea to take time to find a lawyer who is not only highly qualified, but who you also feel comfortable working with. It’s also a good idea to find a Colorado family law attorney who seems to have a familiarity with the courts handling both divorce and custody cases.
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By: W. Curtis Wiberg

As part of a Denver divorce or custody case, the Court may be asked to make determinations concerning child support and alimony (spousal support). The most significant consideration in these determinations is each party’s income. While it is often easy to just look at the most recent paychecks or W-2 of each party and plug those numbers into the child support and/or maintenance guideline calculations, when one party is not working, not working full-time, or not working at an employment/income level that is consistent with his/her capabilities, the income issue becomes much more interesting and complicated. Experienced attorneys will understand the intricacies that come when determining and proving income of in some cases.

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