November 24, 2014

Impact of Domestic Violence on Child Custody in Colorado

anxious-1-867286-m.jpgRecently, there has been significant public attention to issues of domestic violence around the nation. Domestic violence is a pattern of abusive behavior within a family or other intimate relationship. It can include spousal abuse or child abuse, and it can go beyond physical violence, including verbal abuse, emotional abuse, economic abuse, and psychological abuse. Last year, more than 10,000 domestic violence misdemeanor cases were filed, and this drop of 13% is considered an improvement. It is not uncommon for an abusive spouse to claim that he or she will take the kids, or take away support or insurance so that the kids don't have money. Under the Colorado Victims Rights Act, a perpetrator cannot take away kids or housing.

Under ยง 14-10-124(1.5)(a)(IX) and (X), C.R.S.2005, a Colorado court is supposed to consider whether one of the spouses has perpetrated child or spousal abuse when making an allocation of parenting time. However, a finding of child abuse or spousal abuse doesn't automatically result in the court denying parenting time to the parent who perpetrated the abuse, even though it is a relevant factor to determining the child's best interests. In many cases, the parent who has been charged with child abuse, for example, has worked on issues with a therapist and ultimately the parenting coordinator, and others agree that he or she can have parenting time or even be the primary residential parent.

How do the courts decide these difficult cases? In general, the courts will look at whether the perpetrator received therapy or counseling, how far in the past the incident was, the healthiness of the attachment between the perpetrator and the child, the impact of the abuse on the child, and the perpetrator's ability to put the child's needs first.

Continue reading "Impact of Domestic Violence on Child Custody in Colorado " »

November 5, 2014

Motion to Modify Child Support Asks for a Reduction in the Support Obligation, but Results in an Increase

Denver_skyline.jpgA motion to modify child support did not go the way a father and ex-husband probably hoped. The father sought to reduce his monthly child support obligation, but the trial court raised it instead. The Colorado Court of Appeals denied the father's appeal, holding in part that alleged misconduct by the wife did not entitle the father to modification of the child support amount. In re the Marriage of Roddy and Morelli, No. 13CA0632, slip op. (Col. App., Jul. 31, 2014).

The parties were divorced in 2003. The decree of dissolution stated that their minor child would reside primarily with the wife, and that the father would pay $3,000 per month in child support. He filed a motion to modify child support about eight years later, seeking a reduction in the monthly amount based on an increase in parenting time and a decrease in income. Colorado law generally allows modifications to child support if a movant can show "changed circumstances that are substantial and continuing." C.R.S. 14-10-122(1)(a). After a three-day hearing, however, the court increased the father's monthly child support obligation to $4,604.

The father filed a motion for post-trial relief, alleging that the wife withheld financial records, and that this entitled him to relief under the Colorado Rules of Civil Procedure's disclosure requirements. C.R.C.P. 16.2(e)(10). During the modification hearing, the trial court had found the wife's 2011 tax return to be "the only remotely credible source of information" about her income. Roddy at 1-2. The trial court denied the post-trial motion, though, holding that the wife's income was not relevant to the issue of modification regardless of any alleged misconduct. The father appealed both the child support order and the post-trial order.

Continue reading "Motion to Modify Child Support Asks for a Reduction in the Support Obligation, but Results in an Increase " »

October 22, 2014

What Time Period Should a Colorado Court Consider When Determining "Current Financial Resources" in a Divorce?

Samuel_D._Ehrhart,_An_international_high_noon_divorce,_1906.jpgColorado law allows a trial court to order one party to a divorce to pay for the other party's attorney's fees. C.R.S. 14-10-119. The court must take both parties' financial resources into account, including both the amount available to one party and the amount needed by the other, in determining the amount of the order. The statute is silent, however, on the time period, or point in time, that the court should consider in determining an amount. The Colorado Court of Appeals recently considered this issue in a case where the trial court held separate hearings on permanent orders and attorney's fees about six months apart. In re the Marriage of de Koning, No. 12CA2334, slip op. (Col. App., Jan. 2, 2014). The parties disagreed on which hearing date the court should use in considering the amount of financial resources.

The wife incurred about $90,000 in attorney's fees during the divorce proceedings. The husband paid about $20,000 of that amount before the entry of permanent orders, and the wife requested that the court order him to pay the remaining amount at the permanent orders hearing. The court entered a decree dissolving the marriage, as well as permanent orders regarding the division of the marital estate, maintenance, and parental responsibilities and child support. It deferred a ruling on attorney's fees, however, and set a hearing for six months later.

The wife served the husband with discovery requests seeking information about his personal and business financial accounts. He obtained a protective order for this information from the court, which agreed with his claim that any eventual attorney's fee award would be based on his financial resources on the date of the permanent orders. At the fee hearing, he claimed that he should not be ordered to pay the remainder of the wife's attorney's fees because they each had the same amount of assets "on paper." De Koning at 3.

Continue reading "What Time Period Should a Colorado Court Consider When Determining "Current Financial Resources" in a Divorce? " »

October 17, 2014

Colorado Child Support and Self-Employed Individuals

Pursuant to C.R.S. 14-10-115, the statutory section regarding establishment of Colorado child support, the primary financial factor leading to a calculation of support is a litigant's incomes. As discussed in prior postings, there are basic figures, such as income, number of children, and number of overnight visits per year the payor has with the children, that go into generation of a monthly child support amount. Child support is generally easily calculated when there are two people to the equation, both of whom have traditional jobs with readily discernable income. However, when one person is a business owner, or self employed, the analysis of what income figure should be used for that person becomes more complex. Likewise, challenges can arise related to collection of child support from that self employed person. This posting will address both issues as may arise in the legal arena.

As Denver area child support attorneys, we have seen almost any scenario imaginable related to child support. The one scenario requiring perhaps the most scrutiny relates to ascertaining income for a self employed person. This task can arise not only related to the other party's income, but also our own clients. As a starting point, C.R.S. 14-10-115(a)(1) sets forth definitions of what is or is not income for child support purposes. Subsection (D) states, "Payments received as an independent contractor for labor or services, which payments must be considered income from self-employment." Subsection (O) states, "Any money drawn by a self-employed individual for personal use that are deducted as a business expense, which money must be considered income from self employment." Subsection (W) states, "Income from general partnerships, limited partnerships, closely held corporations, or limited liability companies...." In essence, the funds one takes for personal use under any of these scenarios is considered income for child support calculation purposes.

Continue reading "Colorado Child Support and Self-Employed Individuals " »

October 8, 2014

COLORADO DIVORCE AND SAME SEX MARRIAGE


On October 6, 2014, the United States Supreme Court declined to hear cases coming from various US Circuit Courts of Appeal regarding the issue of same sex marriage and rulings finding the bans of various states on same sex marriages to be unconstitutional. One (or more) of those cases came from the 10th Circuit Court of Appeals, located in the heart of our booming metropolis, that being Denver.

From a legal analysis standpoint, by declining to hear or weigh in on those case, the US Supreme Court effectively let stand the decisions that the various state laws at issue in the Courts of Appeals cases were null and void. Colorado, including, of course Denver, is part of the 10th Circuit, which also includes Kansas, Wyoming, Oklahoma, New Mexico, and Utah. The specific rulings which strike down the laws prohibiting or curtailing same sex marriages are applicable throughout the circuit.

The intent of this post is not to weigh in on the hot button topic of same sex marriage. We are lawyers, not politicians or political pundits. Any opinion will offend one side or other of the debate. We don't want to offend anyone. Whether same sex marriage if viewed by some as "right" and some as "wrong," the legal fact is that the greenlight has been given for counties throughout the state to start authorizing same sex marriage, or rather not blocking such.

As same sex marriages evolve in Colorado, so shall same sex divorces. With the 2013 passing of the Civil Union bill in Colorado, Denver area family law attorneys have already seen changes to the domestic relations law legal landscape. Contrary to what some might have anticipated, those changes have not had a significant impact on the courts or us, as attorneys. In the few months since the Bill became law, we have talked to clients, or potential clients, regarding dissolution of civil unions, and have litigated civil union dissolutions. Realistically, the process for dissolving a civil union is almost identical to dissolving a marriage. There is no reason to believe that dissolution of a same sex marriage will be any different.

Continue reading "COLORADO DIVORCE AND SAME SEX MARRIAGE " »

September 15, 2014

Colorado Custody and Relocation With Children (Part 2)

Part 1 of this posting, from June 2014, focused on the basics of relocation with children in a Colorado custody case, including analysis(es) related to situations which might arise either prior to a case being filed, or while a case is pending, as well as pre-final orders requests to move from Colorado with children, covered under a court case called Spahmer. Though various portions of statute and case law deal with the pre-final orders aspects of custody and relocation, there is a completely different legal standard for seeking permission to leave Colorado with the children after final orders have entered in a divorce or custody case.

Once final, or "permanent" orders have entered, there are two scenarios in which relocation with children could become an issue. Prior to getting into an analysis of the law related to properly requesting a change in location, I will briefly address a situation we, as Denver custody attorneys, see from time to time. Though not common, there are instances in which one party to a custody case decides to leave Colorado, or the Denver metropolitan area, with the children and without seeking permission of the court or the other party. If there are parenting time orders in place, the expectation of any court is that they will be followed. If one party decides to just leave Denver, and abscond with the children without permission, the law affords various remedies to the other party. Of course any family law attorney should advise his or her clients that just leaving with the children can have tragic legal consequences.

When on party leave Colorado with the children such that he denies the other party his or her visitation, he or she becomes subject to relief under C.R.S. 14-10-129.5, which relates to enforcement of parenting time orders. Most certainly, he or she will ultimately lose actual physical custody of the children for leaving the state without permission. He or she will likely also be subject to contempt of court proceedings, which can include jail. C.R.S. 14-10-129.5 also contains contempt like provisions. Beyond these avenues for relief, the person wrongly leaving, when caught, can expect to have is or her visitation taken away and will likely have to endure supervised visitation for quite some time until he or she proves they are no longer a flight risk. The arm of the law within the United States is long. Should one elect to flee to another state, once found, it is likely the other side with take steps under the Uniform Child Abduction Prevention Act to get the children returned to Colorado. Finally, violating Colorado custody orders and fleeing the state, or area, with the children is technically a felony and can lead to serious criminal consequences, including potentially prison. Colorado family law courts do not like to see their orders regarding visitation violated and the penalties can be harsh. Of course, the "relocation", per se, discussed in this paragraph is the exception and the wrong way to go about things.

When a party determines that he or she wishes to move from Colorado, with the children, the proper route to go is to seek relief from the court pursuant to C.R.S. 14-10-129, the parenting time modification statute. C.R.S. 14-10-129(2)(c) specifically addresses the issues centered around a parent's desire to relocate with the children, including procedures, legal standards in terms of what the court is looking for in terms of information to make a determination, etc. Relocation cases are generally also viewed under a case called Ciesluk, 113 P.3d 135 (Colo. 2005), in which the court determined that a court should look at the best interest factors set forth in C.R.S. 14-10-124, as well as those enumerated in (2)(c). Unlike a Spahmer analysis, the reason for the move under Ciesluk matters more significantly.

Continue reading "Colorado Custody and Relocation With Children (Part 2) " »

August 25, 2014

Recent Colorado Appellate Case Discusses Arbitration in the Divorce Context

Arbitration has become more and more popular in the last few years, as litigants opt to resolve their issues outside of the formal courtroom and in the more informal setting of arbitration. Although not as formal as a courtroom, the arbitrator's decision on the legal issues in front of him or her is generally legally binding. In fact, in some cases the reviewability of an arbitrator's decision is extremely limited.

broken-heart-1321733-m.jpgAlso, there are a few important limitations on an arbitrator's authority to decide legal issues. The Colorado Court of Appeals recently decided a case that required the Court explain how arbitration fits into the family law context, specifically divorce.

The Facts

The facts of the case are quite simple, actually. Husband and Wife got divorced and, as a part of the divorce, Husband was to pay Wife $4 million over the course of several years. The payments were structured so that Husband would pay Wife a monthly amount for several years and then, after all marital property had been liquidated, Husband would pay Wife the remaining amount in a lump sum. The final part of the deal was that Husband was entitled to some credits, according to expenses he incurred while selling the property.

Continue reading "Recent Colorado Appellate Case Discusses Arbitration in the Divorce Context " »

August 2, 2014

Modification of Spousal Support Orders in Colorado Divorces

In many Colorado divorce proceedings, the court will determine that one spouse must provide some form of support to another spouse. Often, this is because one spouse put his or her career or education on hold to care for the marital home, or because the income potential of one spouse is significantly higher than the other spouse.

family-with-baby-4-1046983-m.jpgHowever, it is important to know that even when a Colorado family court judge hands down a final order in a divorce proceeding, that order is not necessarily permanent. Almost all orders can be modified under certain circumstances, when required conditions are met. This is also true of spousal support orders.

Modifying a Spousal Support Order in Colorado

Spousal support orders, or spousal maintenance orders, can be modified in some instances. However, there is no hard and fast rule for when modification is appropriate. Instead, it is left up to the courts to determine when a modification of a spousal maintenance order is proper.

Continue reading "Modification of Spousal Support Orders in Colorado Divorces " »

July 23, 2014

Child Custody Laws for Same-Sex Couples in Colorado are Far From Certain

One of the most important aspects of any divorce proceeding is who is going to retain custody of the children. For opposite-sex Colorado divorces, there are rules that have been applied and defined over the years that create settled expectations. However, as more and more same-sex couples get legally married in other states, there is a question as to how Colorado law will treat these relationships.

i-love-my-child-1106732-m.jpgAs a starting point, the State of Colorado does not consider same-sex marriages entered into in other states to be legally binding in Colorado. So if a same-sex couple who was married outside the state splits up while in Colorado, Colorado law will apply and will not recognize their marriage.

This can lead to situations where, if the parents had been of the opposite sex, the law would be settled. However, since the couple is a same-sex couple, the law is unsettled. This creates a difficult situation for same-sex couples because there is no way to know what to expect when splitting up.

Continue reading "Child Custody Laws for Same-Sex Couples in Colorado are Far From Certain " »

June 23, 2014

What Constitutes Marital Property in Colorado?

When a marriage comes to an end, there must be a division of the assets that have been accumulated during the marriage. Generally speaking, states take one of two approaches when dealing with the division of marital assets. The more common of the approaches, and the approach taken by the state of Colorado, is "equitable distribution."

tracks-in-field-1435694-m.jpgThe concept of equitable distribution is exactly what it sounds like. The property in a marriage is not divided equally between the parties but in a manner that is fair, given a number of different factors. Before a court gets to the division of marital assets, however, the court must first determine what constitutes a marital asset and what is the individual property of the parties.

Marital Assets in Colorado

In Colorado, the general rule is that property owned by either party before entering into the marriage remains the individual property of that party. All jointly held property is marital property. In addition, even an increase of value in individual property during the marriage can be considered marital property, depending on the circumstances.

Continue reading "What Constitutes Marital Property in Colorado? " »

June 9, 2014

Colorado Custody And Relocation With Children (Part 1)

stock-photo-4332028-vacation.jpg

Though we can all look back to a time when people were born and raised in one town or one state, the reality is that today's society is both national and transient in nature. People work for national companies, with multiple locations. Job transfers to new areas of the country are a fact of modern day employment and the 21st century economy. People no longer stay put in one location. Aside from employment situations, people with children may have other reasons to move from Colorado, such as acceptance into an out of state university, military reassignment, or a desire to just be closer to a family support network somewhere else. When families or couples are together or intact, these moves are just part of life and everyone jointly rolls with the changes to come. However, things can be entirely different, and moving can be much more difficult, for people either going through an initial Colorado custody or divorce case, or those wanting to move at some point after final orders are entered. As a basic premise, one must keep in mind that obtaining court permission to move pre-decree or pre-final orders can be a much easier proposition than seeking to move at some point in the future after the initial phase of a case is done.

Prior to the entry of final orders in a Colorado custody case, or divorce with children, both parents have equal rights to children and there is no specific law, per se, that prohibits one party from just packing up and moving with the children. However, once a family law case involving children is filed, Colorado statute, either Colorado Revised Statutes section 14-10-107 or 14-10-123, precludes people from leaving the state with the children while the case is pending, absent agreement from the other party or an order of the court. If a case has not yet been filed and one parent moves from Colorado with the children, there is no statutory violation under sections 107 or 123. That being said, our courts, depending on the circumstances, have the power to order the party who left with the children prior to a case being filed to return them to Colorado. This might occur in situations in which a party just left Colorado with the children, absent an agreement or notice to the other party, and the other party timely files an emergency motion requesting their return. In such instances, the court may look at how long the party and children have been gone prior to filing, whether the other party knew of their whereabouts, or other logical factors tying into whether it is in the children's best interest to come back.

Continue reading "Colorado Custody And Relocation With Children (Part 1) " »

May 21, 2014

DENVER DIVORCE AND "DISCOVERY" (Part 2)

Earlier this month, we posted the first part of this article, setting for the basics of what Denver area family law attorneys call "discovery." As previously indicated, discovery is generally issued in divorce, custody, or child support cases when one side believes more information is needed. This can include a heightened request for documents, generally financial in nature, or requests for questions to be answered, whether of a child related or financial nature. Discovery in a family law case will generally entail interrogatories (questions to be answered) or requests for production of documents. Your attorney can assist you with determining whether the specific facts and circumstances of your case warrant, or necessitate, the issuance of discovery.

Some examples of when discovery might be needed would be in a situation in which the wife has handled all of the family finances or, perhaps owns a business. In such an instance the husband might be in the proverbial dark as relates to the family finances, past or present, and may be in need of further information for purposes of assessing a divorce settlement or preparing for court. Interrogatories may be a useful tool for purposes of ascertaining the other side's position as relates to custody issues, or perhaps for purposes of boxing them into specific written answers which can be used in court. As indicated in the prior posting on this subject, when one side issues formal discovery, it is extremely likely that the other side will do the same. Set forth below are some common rules or pointers for both issuing discovery, as well as responding to it.

1. Pursuant to the Colorado Rules of Civil Procedure, discovery must be issued 63 days before a hearing. Generally, this would be the final divorce or custody hearing. In some instances, there may be interim hearings set, such as a temporary orders hearing. Discovery can be issued less than 63 days before these interim hearings, but one must be aware of that 63rd day prior to the final disposition of the case. Though courts can sometimes be flexible or lenient with deadlines in a family law case, the technical rule would be that discovery issued within that 63 days is issued improperly. When faced with improperly issued discovery, one should look at filing an objection to the request within the time frame allotted.

2. Discovery may not be issued prior to the initial status conference in any case. Pursuant to C.R.C.P. Rule 16.2, parties must first attend the mandatory touch base conference with the court prior to issuing discovery. Some counties may even issue case management orders indicating that permission must be sought from the court prior to issuing discovery. Parties should be aware of the provisions set forth in their case management orders. From time to time, we do even see attorneys issuing discovery early, or late. In those instances, and objection is also appropriate.

Continue reading "DENVER DIVORCE AND "DISCOVERY" (Part 2) " »

May 5, 2014

COLORADO DIVORCE AND FILING FOR BANKRUPTCY (PART 2)

wedding-rings---african-american-1384052-m.jpgThe first part of this discussion on bankruptcy gave an overview of the bankruptcy process and how it applied to couples who were still married. The second part will discuss the impact of bankruptcy when a couple separates or divorces.

What Happens If a Couple Separates?

In some respects, if a couple separates but remains married, the effect of one spouse filing for bankruptcy is not much different than if they lived together. Assuming the debtor spouse filed individually, the nonfiling spouse might find that certain marital property was considered part of the bankruptcy estate. While the debtor spouse could wipe away a substantial portion of his or her debts, the nonfiling spouse would still be responsible for his or her separate debts.

The above may depend upon how long the couple has been living apart. If the debtor spouse waits several years after the separation to file for bankruptcy, it is more likely that the bankruptcy court and trustee will view the nonfiling spouse's property as separate property, not marital property that is part of the bankruptcy estate.

Continue reading "COLORADO DIVORCE AND FILING FOR BANKRUPTCY (PART 2) " »

April 25, 2014

COLORADO DIVORCE AND FILING FOR BANKRUPTCY (PART 1)

wedding-ring-1415307-m.jpgWhen Denver couples divorce, few anticipate that one of the parties will file for bankruptcy, or that the bankruptcy could have such an impact on both of their lives. That is because there is a lot of confusion about bankruptcy in general: who applies for bankruptcy, what it involves, and its long-term impact.

This blog will look at bankruptcy as it relates to Denver couples who separate and divorce in two parts. The first part will discuss bankruptcy in general, and what happens when one member of a still-married couple files for bankruptcy. The second part will discuss potential problems a couple encounters when they separate and one party files for bankruptcy, or when one party files during or after divorce proceedings.

What Is Bankruptcy?

When individuals or couples file for bankruptcy, it is usually because they are looking to clear away debt. Their house might be "underwater" -- meaning it is worth less than they owe on their mortgage -- and they may have several large debts, such as for credit cards. In these situations, creditors will act aggressively to either pursue the debt or, if applicable, to foreclose or repossess the property. A family's lives might be filled with threatening phone calls and letters. People in this situation typically file for bankruptcy because they have no other choice: they cannot make a deal with the credit card companies or afford to make their current mortgage payments.

Continue reading "COLORADO DIVORCE AND FILING FOR BANKRUPTCY (PART 1) " »

April 14, 2014

DENVER DIVORCE AND "DISCOVERY" (Part 1)

accounting-work-911459-s.jpg


In any Denver area divorce or custody case, each side is going to be required to complete and exchange regular financial disclosures pursuant to the Colorado Rules of Civil Procedure, Rule 16.2. Normal financial disclosures will include drafting what is called a "Sworn Financial Statement," which is a document essentially setting forth a party's income, assets, debts, and expenses. In addition to the Sworn Financial Statement, parties will also be required to provide various other documents, such as the last 3 year's tax returns, last 3 month's pay stubs, and current bank, credit card, insurance, retirement, and various other financial statements. The purpose behind this exchange to make sure that each party has the financial information he or she needs to make assessements as to various financial issues, whether income related to child support or alimony, or what property there is in a divorce case and how it will be divided.

The normal C.R.C.P. Rule 16.2 financial disclosures tell part of the picture, but sometimes don't give enough information for people to make informed decisions or prepare adequately for a court hearing. As such, the Rules of Civil Procedure also authorize various other mechanisms for gathering information from the other party. Specifically, there are various rules which allow depositions, requests for admissions or inspection, interrogatories, and requests for production of documents. In general, this body of requests that can be made is called "discovery." As Denver area divorce and family law attorneys we generally see the "discovery" issued, or received, in the form of the the latter two: interrogatories and requests for production of documents. In theory, discovery should be issued in instances when the financial disclosures just don't tell enough, or more information is sought, such as might relate to the children or job search efforts. Other instances in which our attorneys might issue discovery might be when the other party is self employed or owns an interest in a business, or perhaps has been the one who primarily, or solely, dealt with the parties' finances.

Discovery can be a useful tool in both a divorce or custody case. As a general rule of thumb, and keeping client funds and costs in mind, discovery should only be issued when needed. Issuing and responding to discovery bring certain additional costs and challenges. Sadly, there are attorneys out there who issue it "just because" or as a matter of course. In these instances, there is not much one can do, as each party has the right to request more information. Inevitably, when one party issues discovery, the other side will almost certainly return the favor. Though this might sound childish, the legal world can be very tit-for-tat.

Continue reading "DENVER DIVORCE AND "DISCOVERY" (Part 1) " »