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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It’s been a few years since I have addressed the issue of child endangerment and custody cases. With some minimal changes to statute, and a rash of cases we have seen thus far in 2015, it seems like an appropriate time to revisit the topic. Most cases involving Colorado child custody proceed in normal fashion, with issues related to both visitation (parenting time) and legal custody (decision making) being resolved either through written agreement or ultimately at a hearing in front of a judge. However, from time to time, cases arise in which there are instances of abuse, whether physical or emotional, or neglect, which warrant immediate action on the part of the court. Colorado Revised Statutes section C.R.S. 14-10-129(4) sets forth standards and procedures for parties to seek immediate relief from the court in instances in which there is “imminent” danger to a child. To Colorado custody attorneys dealing with child emergencies, the common term for a motion filed under C.R.S. 14-10-129(4) is a “motion to restrict,” the filing of which comes with its own set of procedures and pitfalls. It is important for parties and legal practitioners to understand how a motion to restrict works and the standards of proof a court will look for for purposes of either sustaining such a motion or defending against one.

As an experienced Denver family law attorney, the first step I take when assessing a motion to restrict is to understand what the specific allegation of danger is. As statute requires a finding of imminent danger, courts are looking for more than just a mean parent, a parent who yells, or lesser, lingering types of mistreatment or neglect. For a restriction of parenting time to stand, courts are looking for acute and imminent danger, such as extreme verbal abuse or real and provable physical abuse.

Because statute speaks of the physical or emotional abuse placing the child in “imminent” danger, courts are looking for a present threat. Thus, timing matters. Raising allegations from years, months, or weeks ago as the basis for a restriction might not cut it with the judge. As such, when real danger exists to a child, it is important to take action in a meaningful manner as relates to timing. The longer one waits to take action or raise an issue, the weaker the argument that the danger is imminent. Issues too far in the past may be building blocks for seek changes to visitation in the normal course of a modification, but will likely not be enough to meet the burden of proof when seeking restriction.
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Divorce is never easy. The Denver family law attorneys at Plog & Stein see the emotional and financial toll divorce can have on a family. As such, we strive to provide clarity and great outcomes in uncertain situations. Divorce cases in Colorado can entail various issues aside from custody, including alimony, division of property, and division of debt. Though an experienced attorney can help provide clarity in any divorce case, there are gaps in Colorado statutes which leave one scratching his or her head, pondering what the legislature was thinking when it left things out of statute which should be simple, and just make sense?

1. C.R.S. 14-10-113 is the statutory section related to the allocation, or division, of marital assets or property. Statute lays out various rules related to the definition of property and how a court might divide such. The division of property, whether related to real estate, financial accounts, or even pots-and-pans or furniture, is a common issue in divorce cases. Oddly, one issue so intertwined to the division of property is completely absent from the statutory section encompassing Colorado divorce law, that being DEBT. The Uniform Dissolution of Marriage Act, C.R.S. Title 14, Article 10, is completely void of a section, or even explanatory language, related to debt. In practice, a Colorado divorce lawyer will look at a case from a balance sheet standpoint, trying to essentially equalize the allocation of property and debt. Maxims which hold true regarding property, such as premarital property is separate property, also hold true for debt. For example, student loans brought into the marriage or a credit card balance stay with the person bringing those obligations in and they are not part of the marital mix. Why? This is just the way it’s done.

The Colorado legislature could, and should, take the time to codify how marital debts and separate debts are commonly treated in the court, or in a negotiation setting. It is mystifying that one of the cornerstone issues of contention in any divorce case warrants no mention in statute. Furthermore, statute could go further, after even referencing debt, and define what is marital. Debates often arise regarding whether certain debt is marital. For example, credit card debt, regardless of how titled, used for food, clothing, shelter, family endeavors, etc., is generally considered martial. Contention arises when one person has credit card debt for his or her own personal expenditures, such as a trip to Las Vegas or perhaps plastic surgery. Some of the debate could be eliminated by clear statutory language defining what debt creates the negative part of the marital estate and what does not.
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sand-84589_640.jpgRepresenting clients during a divorce case is only part of our Denver family law practice. If a couple has children who are under the age of 18, our clients’ responsibilities continue long after the judge grants the divorce, and we are there to help. (Please note that Colorado courts no longer use the word “custody,” but since it remains a familiar term, we will use it here.) Vacations, especially during summer breaks from school, are an important part of childhood, but as great as summer vacations can be, they can also be a major source of conflict between parents who share custody. How does Colorado family law handle this sort of situation?

As a general rule, it is always a good idea to notify the other parent of a planned summer vacation. A parent may be legally obligated to get the other parent’s permission for a trip, however, based on two factors: the timing of the trip and the destination.

Timing of a Summer Vacation

A parent can schedule a vacation during one of their designated periods of summer visitation without necessarily needing the other parent’s permission. Most parenting plans allow alterations to the established schedule with both parents’ agreement, such as if a planned vacation is only possible at a time not covered by the existing parenting plan. It should go without saying that it is absolutely critical to get any sort of agreement like this in writing.
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