In April 2012, I started a multi-part blog posting regarding the right time to file your divorce case in Colorado. As a busy custody and divorce lawyer in Denver, the summer has flown by without affording me time to continue providing the rationale for the answers provided. After many battles regarding custody, visitation, modifications, alimony, and more, I am now in the position of having some time to get back to writing, with the hope of providing more useful Colorado family law information for those who need to know. Below is a continuation of the answers to the original questions posed, starting with number 5:
5. We are in the process of filing for bankruptcy. WAIT
I answered this question “wait” for various reasons, both procedural and substantive. Technically, pursuant to the US Bankruptcy Code and the Supremacy Clause of the US Constitution, a bankruptcy case and federal law supersede state law. Once a bankruptcy case is filed, there is an automatic stay issued, which, in essence, technically requires that the financial aspects of a Denver divorce case are “stayed” or put on hold until the bankruptcy case is resolved. Though we have seen many bankruptcies intercede in divorce cases, it is rare to actually see the stay raised as an issue, or enforced. Nonetheless, technically, it could stall your divorce.
Aside from the automatic stay, which could delay your divorce, there are certain basic bankruptcy premises which can affect a divorce case, and vice versa. As a general premise, orders entered in a family law case related to Colorado child support or alimony are non-dischargeable, meaning there is no way to get around those orders. Additionally, orders stemming from a divorce case related to division of property or allocation of debt are also generally non-dischargeable in bankruptcy. As such, it makes no sense to spend money and time litigating your divorce case, including property and debt issues, if you know bankruptcy is on the horizon. Rather, it is more efficient and practical to get any issues related to separate and marital debt locked in and resolved at the federal level first. The divorce cannot undo the bankruptcy court outcome. One must keep in mind that the bankruptcy can affect property too, such as might related to a jointly financed home or a car, or even who gets what and the issue of handing it over. Once your bankruptcy is done, the ground rules are more clear in your divorce case.
6. My husband is threatening to take the kids to Florida and not come back. FILE
In this scenario, I indicated to “file.” This should be done immediately. A custody attorney should know that whether in a divorce or custody case, there is an automatic injunction in place which precludes the parties from taking the children out of the State of Colorado while the case is pending, without permission from the other or from the court. In a divorce case, this injuction is set forth in C.R.S. 14-10-107. In a custody case, the injunction stems from C.R.S. 14-10-123. The injunction set forth in solely custody cases was only added in the last few years. Until then, attorneys sat in frustration as they watched people in custody cases start out with less protection than those in a divorce matter. Fortunately, our legislature got wise to the gap and things changed.
Should your spouse threaten that he or she is leaving Colorado, to Florida or wherever else, you can legally stop him or her by virtue of getting your divorce case filed and getting him or her served. The statutory injunction will be set forth prominently in both the divorce petition and the summons. Once served, there will be no legally valid excuse for just taking the kids and going. In essence, they are legally blocked from taking the children pursuant to C.R.S. 14-10-107. Until such time as a case is filed and both parties are served, there are no black-and-white rules in terms of the children, meaning neither party is presumed to have an automatic right to custody, to determine where the kids will be, etc. Furthermore, assuming you get them served, there are expanded legal remedies available to you to get the children back and courts will take a violation of the injunction very seriously. As such, it will be easier to get emergency relief should your spouse elect to take the children on a permanent vacation elsewhere in the country. As the old saying goes, “a pound of prevention is worth more than a ton of cure.” Therefore, you should file right away.
7. My wife left with the kids last week and is in Arizona. FILE
If your spouse alights with the kids to Arizona or any other state, you should file your Colorado divorce immediately. As indicated in my answer to question 6 above, courts will generally take very seriously one party just leaving with the children. As also indicated above, once service has been effectuated, the party leaving has a serious problem. However, in instances in which one party leaves with the kids prior to filing, the lines get more blurred. At Plog & Stein, we generally look at these instances from a practical and time sensitive standpoint. When one party leaves with the children, there may be various emergency remedies available, including seeking relief under the “Uniform Child Abduction Prevention Act.” However, the longer you wait, the longer the issue becomes grey. If your spouse leaves Colorado with the kids and you wait three weeks, a month, two months, or more, it will be much easier for him or her to indicate that you are/were fine with the move. A court will also ponder, “Gee, if this is such an emergency why did you wait a month or two to do anything about it?” Even if you don’t know where he or she has taken the children, you should act immediately. The court can provide relief. The concerns a court might have with a party waiting a month or two tie directly into whether the court will be willing to order the children returned to Colorado, both long term and short term. By this I mean that taking action immediately can also affect the final outcome of the custody aspects of your divorce case. Prior to filing, you should immediately try to email or text your spouse, letting him or her know that you are not OK with taking the children out of state. As things can often come down to he-said-she-said, it is best to try to create a paper trail for evidentiary purposes.
In any aspect of life, timing is everything. Though you know you want to be divorced, you should always factor in getting the case going at the right time. Whether concerning Colorado alimony or custody, property division or child support, there is a right time, or time range for everything. If you aren’t sure, consult your Denver divorce attorney. We are here to help.