Strategically helping Colorado clients through divorce & custody cases
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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

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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.

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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

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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

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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

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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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