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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Part 1 of this article focused on gaps in Colorado statute related to child support. Though the law is comprehensive, it’s not perfect. Colorado family law and custody practitioners repeatedly experience situations in cases, whether divorce, custody, or otherwise, in which they say to themselves, “statute should clearly state….,” or “this gray area would be easily resolved if the legislature had only gone one step further.” I could sit in my office for hours finding various holes in our family law statutory sections, where just a little more clarity might take away some of the ambiguity that parties, lawyers, and judges face. The second part of this multi-part posting will focus on various gaps in custody and visitation laws and will also suggest potential, easy solutions to such.

1. A very common questions I’m asked is “at what age do my children get to choose who they live with or when they see the other parent?” The proper answer, under Colorado custody laws, is “there is no magical or statutory age at which kids get to decide as to custody or visitation.” In practice, most courts will generally start to give kids more autonomy around age 14. By 16 or 17, most courts will give significant weight to the child’s wishes. Regardless of age, families and children are bound by the ambiguity in Colorado law, which often leads to legal wrangling and court battles over what to do with teenagers. Pursuant to C.R.S. 14-10-129, one must technically show either physical endangerment or significant emotional impairment to a child’s development in order to change primary residential custody. What about situations in which that 16 year old come out and says, “I want to go live with mom?” Technically, if there is no physical or emotional danger at dad’s home, the change in custody should not occur. It’s time for Colorado statute to catch up to the laws of some other states. I represent clients in various states throughout the county. Many of them indicate, “well, if the child was in my state he would get to decide at age “X.” Often times I hear 14. The youngest I commonly hear is age 12, in Florida. Though a 12 year old should not be vested with deciding where to live, or what parenting time to exercise, a bright line age set forth in Colorado statute, such as 15, could cut down on significant amounts of litigation related to older teenagers. Beyond legal battles over modifying residential custody, a concrete age would also assist in initial divorce case in which there is a teenager. It would also alleviate litigation under C.R.S. 14-10-129.5 related to enforcement of parenting time orders. I’ve seen too many cases over the years in which a teenager says he or she doesn’t want to go to the other parent’s home, contrary to the court orders. These situations, sad and difficult in the first place, are often mad worse when the other parent decides to bring first parent to court for violation of the orders. Though some judges and experts recognize that the first parent cannot physically pick up that 5 foot 10 inch child and throw him into the car, some judges do not. Courts can take violations of orders seriously and such can potentially even lead to jail time. Again, a bright line rule as to age would end these battles over enforcement of visitation orders, and lighten court dockets. As one wise family law judge puts it, “a teenager is like an 800 pound gorilla and you can’t make that gorilla go where it doesn’t want to. The teenage years are crazy enough. A little clarity in statute might help take out some of the drama for all. Of course, with underdeveloped brains and raging hormones, statute would need to have caveats to full autonomy, such as might relate to substance abuse, violence, lack of academic guidance or significant mental illness in one party’s home. Absent those things, and with two good parents, a 15 year old should have a choice and parents should have clear guidance as to the law.
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As experienced family law attorneys in the Denver area, we have seen a multitude of situations over the years in divorce, custody and child support cases. Having represented more clients than easily countable, we have observed certain scenarios arise, now and then, for which there is no specific statutory remedy or answer. In other words, we sometimes find ourselves pondering or debating why the Colorado Legislature, with multiple members and input from the domestic relations bar, could leave certain aspects of statute vague or with no specific rule? As we see these types of issue arise over and over, so should other attorneys. Regardless, the gaps go unchanged. Below are some of those gaps in statute, related to child support, which are in need of bridging through additional language.

1. C.R.S. 14-10-122 is the statutory section dealing with modification of child support. C.R.S. 14-10-122 indicates that a modification of child support can be applied retroactively to either the date a motion is filed, or when an agreed upon change in custody of a child occurs. The second scenario will still ultimately require a motion. The rationale in this retroactivity is that it can take some time for parties to actually obtain a court hearing and get a change to child support change formally effectuated or ruled upon. Despite these protections afforded to the parties, there are still instances in which statute could provide more guidance. One relates to stopping child support upon that change in custody, whether agreed upon or not. We have seen cases in which the child goes from mom to dad, or vice versa, and contrary to the terms of the current custody orders . In some cases, one party may take on the custodial obligations for the child, but continues to be saddled with paying the child support obligation until such time as the matter goes to court, if at all. Realistically, as simple rule indicating that when custody changes, regardless of agreed upon or not, the duty to pay child support automatically abates until such time as a hearing occurs. With this type of a black and white rule, the party taking custody of the child is not burdened with technically having to pay the other party until such time as a court hearing, which can take months. As a matter of fairness and financial practicality, the party obtaining custody shouldn’t have to go to court for other proceedings to get his or her Colorado child support stopped. Of course this is a separate issue from whether he or she wants to receive child support. Simple language, such as “when a change in primary residential care occurs, regardless of the reason, and regardless of whether the new custodial parent seeks a modification, the obligation to pay child support shall automatically be abated until such time as a hearing is held.” This language would not eliminate the potential for factual he-said/she-said arguments. It would, however, provide immediate relief.
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yellow-aspen-trees-9-1100273-m.jpgIn a Colorado divorce, when the court divides property, it must determine whether an asset is marital (subject to division) or separate (not subject to division). Generally, marital property doesn’t include property that spouses obtained before marrying or that they have agreed will remain separate. If a spouse places separate property into joint ownership with the other spouse, however, the court presumes he or she intended it to be marital property. This presumption can be rebutted by clear and convincing evidence. However, if separate property is commingled with marital property such that it can’t be traced back to separate property, it is transmuted into part of the marital estate.

In re the Marriage of Amy Corak and Nevan Corak considered a husband’s appeal of a Colorado trial court’s allocation of marital property. The case arose in 2010 when a couple entered into a prenuptial agreement. The agreement identified assets that would be separate property, which included a parcel of the husband’s property (“Shoshone”). All separate property was supposed to remain separate property if the marriage ended.

A month after the couple married, they purchased the Pinyon property. The husband pledged Shoshone as collateral for a home equity line of credit. This was to be used as a down payment for the new marital property. The couple decided they would use $16,000, drawn from the line of credit, to pay off the wife’s credit card debt from before the marriage.
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