June 26, 2013

When is Child Support Terminated or Modified in Colorado?

1391967_baby_hands-1.jpgChild support is considered a child's right in Colorado. In every divorce or custody case involving children in Colorado, the court will determine whether one parents owes the other child support. Usually child support does not continue indefinitely, of course; it terminates upon a child's emancipation.

"Emancipation" in Colorado occurs when a child turns 19, marries, joins the military, graduates from high school and/or becomes self-sufficient, or death--whichever comes first. These are considered the moments when a child becomes an adult.

Until child support is terminated, a mathematical formula in Colorado's child support guidelines are used to calculate the appropriate amounts. While it is possible to calculate the amount yourself using worksheets, an attorney can help you figure out whether you can ask the court for a deviation from the formula or not. For example, an attorney can argue to the court on your behalf if you need to ask for more child support because of large medical expenses or private school tuition. Support is calculated using both parents' incomes and taking into account how much time each parent spends with the kids. The guidelines do not apply, however, in the case of very low or very high-income parents.

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June 12, 2013

DENVER DIVORCE AND YOUR BUSINESS

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As divorce attorneys in Denver, we deal with various issues in any case. This can include issues related to children, property, financial support, and more. Not all cases are the same. One of the significant issues that can arise in a divorce is the division of property. In most cases, the property to be divided consists of a home, retirement and bank accounts, vehicles, investment accounts, or the furniture and pots and pans. However, there are families or parties to a divorce case who own businesses or business interests. As part of our divorce practice, experienced family law attorneys at Plog & Stein assist with the valuation and division of business assets as well.

Colorado business interests come in all shapes and sizes. A person may own a large business, such as a chain of restaurants or a car dealership. A person may own a small business, such as a one person accounting firm or a mom-and-pop laundry mat. A person might also own a fraction or portion of a business, without owning the whole entity outright. In a Colorado divorce setting, a business, or interest in a business, is generally considered property. As property, the same principles for dividing other assets apply. Property acquired during the marriage, absent a limited exception, is marital. Increases in value during the marriage to property acquired prior to marriage are considered marital in nature. Titling on property determined to be marital does not matter and said property can be divided by the court regardless of whose name it is in.

Prior to arriving at the actual division of a marital business asset, the parties must determine the value of a business. Contrary to popular belief, the value of any business is more that just looking at the assets/property and debt to arrive at a value from a balance sheet approach. Though this can be one facet of a business valuation, there is much more to the equation generally accepted by attorneys and courts in a Colorado divorce case. Beyond assessing assets and liabilities, a business valuation will entail an assessment of current and historical revenues and profits. This analysis also ties into the term "good will," which can be quantified into an actual dollar figure. We have seen cases in which there may be a two person professional operation in which one party or the other will say, "There's no value to the business; I am the business." Of course, this will be a statement made by a husband or wife who actually runs or owns the business. Conversely, the other party may find it meritorious to look into whether even a small business has value for asset division purposes. As part of the process, business valuators can also determine historical values, such as the value at the time of marriage or acquisition, as well as the current fair market value.

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May 14, 2013

Colorado Appellate Court Considers Great-Grandparent Visitation

333066_nana.jpgAn area that can present a cause for concern in Colorado child custody cases is the question of grandparent visitation. Can grandparents request visitation with their grandchildren through a judicial process just as a divorced parent asks for parenting time with his or her child? Colorado gives grandparents more legal rights than many states do, but these rights are still limited. A grandparent can bring a case to court only under certain circumstances.

Colorado Revised Statutes 19-1-117 controls this issue, stating that a grandparent can seek judicial recourse under such conditions as: (1) the parents are legally separated or divorced and there has been a child custody case, (2) custody of the child has been given to someone other than the parents, (3) the marriage of the parents is annulled, or (4) the child's parent who is the child of the grandparent dies.

Additionally, grandparents cannot sue for visitation merely because they are estranged from the parents. The grandparents bear the burden of proving by clear and convincing evidence that a parent who wants to deny them visitation is not acting in the child's best interests and also that visitation would be in the child's best interests.

Colorado courts also look at a parent's rights in these visitation cases. An unusual but instructive discussion came up in an appellate case earlier this year In re Parental Responsibilities, MDE. In that case, a great-grandmother sued for visitation under the grandparent statute when her granddaughter got a divorce.

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May 1, 2013

DENVER CUSTODY: YOUR CHILD WON'T GO FOR VISITATION. WHAT DO YOU DO?

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Denver custody and divorce attorneys see all types of cases related to child issues. This includes divorces with children, custody cases, cases involving modification of visitation, cases involving enforcement of existing visitation orders, and contempt of court cases. The parent/child relationship in one case will not be the same as in another. Though the general hope is that the bond between mother or father and the child is strong, the reality is that that bond can be strained for various reasons, whether related to the break up of the family, a child with behaviorial issues, a parent with challenges in terms of appropriately parenting, a parent engaged in child alienation, time, distance, or a child just getting older and spreading his or her wings. From a custody law standpoint, the question arises of "what do you do when your child doesn't want to go for visitation?" The answers vary, but there are steps to take to heal relationships, enforce your court orders, and to protect yourself if you are the primary custodial parent.

Though not extremely common, it is not that unusual to have a non-custodial parent entitled to parenting time indicate that a child, or children, do not want to come for visitation with him or her. Often times, the non-custodial parent will be left with no real explanation other than the other parent saying the kids are "angry," "afraid," "bored," "don't like your new spouse," etc. Of course, children are not always going to feel comfortable sharing those feelings with that parent, out of fear of hurting their feelings or upsetting them. The non-custodial parent is left in a postion of wondering what the right move is? Should they force the children to come, knowing they don't want to? Is the other parent doing something to influence the childr not to come? Will the court do anything? Court's are used to allegations from some custodial parents that the children don't want to go for visitation, for various reasons. Generally, the children's statements would be hearsay and not admissible in court. As such, the key to figuring out what is going on is counseling. Counseling in these types of situations can come in many forms. When a child doesn't want to go for parenting time, for whatever reason, one can try to get to the core of finding out why via getting the child into individual counseling?

From a problem solving standpoint, perhaps the more effective tool would be to get the child and non-custodial parent involved in reintegration or reunification counseling. This is joint counseling with parent and child designed to figure out what's going on and to work with both parent and child to get over the emotional or behavioral hurdles which have the child avoiding visitation. The sole focus of the reintegration therapy is to heal the relationship. Aside from situations in which a child is resisting parenting time, this type of counseling is also generally deemed appropriate by the courts in situations in which a parent has been absent for long periods of time. Above either parent's wishes or rights, a court wants to know that a child is emotionally safe and comfortable with visitation. As such, reintegration therapy will generally be the first, and hopefully last, step. Sadly, there are cases in which this therapy doesn't work. Neither parent or child may be willing to change their positions or behaviors. The custodial parent may be alienating the child from the other parent. These types of concerns will likely come out in the therapy and can also be dealt with via the court.

When your child does not want to come see you, the primary concern should be how to deal with things. Forcing the child in a non-therapeutic setting can only make things worse, particularly with teenagers. Additionally, parents must keep in mind that as kids get older, say 14 or 15 years of age, they will want more autonomy. Courts recognize this as well and once kids reach their mid-to-late teenage years, courts will often factor in their wishes when dealing with visitation. Again, forcing the issue can make the rift greater. With children this age, it is better to take things slowly, with the hope that they will see the light and come around once they reach adulthood. By this I mean that you shouldn't sacrifice your future relationship by forcing the issue in a highly aggressive manner today. The law affords remedies which one can avail himself or herself of. Don't give up. Just proceed with intelligence, and in a legally appropriate manner.

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April 10, 2013

DENVER DIVORCE AND CIVIL UNIONS

For years, we have listened to debates in the media regarding whether Colorado should, or should not, allow civil unions. The debate ended on March 21, 2013, when the Governor signed into law the Colorado Civil Unions Act, Senate Bill 13-011. Starting May 1, 2013, Colorado will allow civil unions. Under the new law, persons of the same or different gender will be able to enter into legally recognized unions. As civil unions are designed to be similar to marriage and allow the partners to such similar rights, it stands to reason that the new law will also have an impact in the area of divorce law. As a Denver family law attorney, I have started researching the subject and the coming changes, not only to educate myself, but to also prepare our firm to start handling cases involving the break up of civil unions. Just like marriages, people come together and grow apart. Just like in marriages, people fight. Now, just like marriages, there will be a legal process to get people through those break ups in an orderly, and legal, fashion.

The new Act, which will primarily be contained in Colorado Revised Statues, Title 14, Article 15, is full of new definitions, rules, and procedures. The Act contains language defining a civil union, indicating who can legally enter into one, setting forth the legal process for effectuating a union, and setting forth how to get out of one. Divorce law is generally set forth in C.R.S. Title 14, Article 10. Commencing May 1, 2013, Article 10 will now contain Section 106.5, which specifically states that the procedure for dissolving a civil union will be the same as the procedure for seeking a Colorado divorce.

Likewise, the new statute indicates that partners to a civil union will have the same rights as parties in a divorce case, meaning they will now have a family oriented forum to deal with issues of alimony(maintenance), property division, debt division, and other issues people will generally fight over in a divorce. Prior to the Act, people in a non-marriage situation, whether same sex or not, have been forced to litigate dividing up property in a regular civil court setting; and there was no right to alimony. Now they will be afforded a forum with more of a family law flare.

Once the law goes into effect, people will need to apply for a civil union license and register it in their county of abode. Once done, the State of Colorado will recognize the union and confer rights to the partners that might otherwise not be conferred in a boyfriend-girlfriend, girlfriend-girfriend, or boyfriend-boyfriend relationship. For Denver area divorce lawyers, this will certainly mean a new area of litigation. At the same time, those attorneys will already be fully aware of the substantive body of law which will apply to the dissolution of a civil union. The Act does contain language indicating that a marriage is still between a man and a woman. Rights and rules will be gender blind.

Under current law, same sex couples, just as couples of differing genders, can already fight for their rights regarding child support, custody, visitation, etc. in the domestic relations courts and under the domestic relations laws. As such, my immediate perception is that the law will likely have little impact on those types of issues. At the same time, one cannot anticipate all potential issues which may arise. Without much language on these subjects contained in the Act, as relates specifically to family law, the courts will likely be left to clean up any ambiguities or ommisions made by the legislature. Time will tell.

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March 25, 2013

COLORADO ALIMONY AND DIVORCE: POTENTIAL 2014 CHANGES (Part 2)

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In February 2013, we published the first segment of this posting regarding potential changes coming to Colorado divorce law and the issue of alimony, more properly termed "maintenance." The rumors still persist among Denver area family law attorneys, that our alimony statutes will be changing, commencing 2014.

Part 1 of this post discussed changes related to the creating of a guideline table, similar to child support statutes, setting forth a framework for judges to look at related to lengths of time that an alimony award should run and percentage amounts to be received by the payee spouse. The posting also dicussed another potential change coming to the Colorado maintenance statute related to termination or suspension of maintenance based on the recipient co-habitating. In this Part 2 posting, the remaining significant, potential statutory changes to be discussed stemming from House Bill 13-1058 include definitions of income, provisions for the protection of persons not represented by an attorney, and a rebuttable presumption that retirement at "full retirment age" is a good faith basis, or reason, to modify a maintenance award.

Under the current alimony statute, C.R.S. 14-10-114, there is no concrete definition of income. In part, the current maintenance statute has deferred to C.R.S. 14-10-115 for such definition. If changed, the alimony statute will now have a definitive list of what is income for maintenance purposes, including language related to reductions for child support obligations, the ability for the court to impute income to someone, and definitions of volutary unemployment or under-employment. Like the child support statute, the list defining income is lengthy, and can include most sources, such as income from employment, self employment, retirement or pension pay, interest, dividends, Social Security payments, workmen's compensation, monetary gifts, lottery winnings and more. As practicing Colorado divorce lawyers, we have largely, though such has been somewhat unwritten, deferred to the child support statute for guidance as to what a court would, or might, consider income for alimony purposes anyway. That being said, it would now be set forth in black and white, for all to see, with little grey areas to argue over.

The next potential change to the Colorado maintenance statute relates to built in protections for a person not represented by an attorney. Currently, the courts have had the ability to step in and assert their input regarding whether an award of alimony, or the waiver of alimony, is fair. Cases in which a court will actually undo an agreement without one of the parties raising the issue are few and far between. I cannot say that I have ever actually seen a court disturb a maintenance agreement. Furthermore, when parties are waiving the right to receive maintenance, they are generally setting forth, whether in writing or orally in court, that they are freely and voluntarily making the waiver. If the House Bill is passed, courts will not be allowed to approve an agreement waiving maintenance or an agreement regarding maintenance which does not follow the guidelines, unless the unrepresented party has specifically indicated that he or she has been made aware of the guidelines. In practice, this will mean that attorneys will now need to make sure that they provide the other side, if unrepresented, with a copy of the guidelines prior to having them sign an agreement. In theory, if there are two parties to a divorce, both of whom have no attorney, they will need to do the same for the courts to approve any agreement. In essence, this creates a safeguard for people without attorneys. It also creates one more step that must be taken to get your divorce completed.

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February 28, 2013

Colorado Custody and Parenting Time Modifications Involving Complex Questions of Law

As Denver family law attorneys, the lawyers at Plog & Stein understand that life events happen after a court order is in place for child custody and visitation (referred to as parenting time). A parent's or parents' circumstances may have improved with a new or better-paying job, stable housing, or simply a good mental state. An improved status for the parent seems to equate better parenting for the child or children, but it is not always as simple as that for the Colorado court system - especially when the parties discussing custody include people who are not the child's or children's biological parents.

In the last year, an appellate decision, In re the Parental Responsibilities Concerning B.R.D., A Child, 2012 COA 63, No. 10CA2386, examined what factors needed to be present for a modification of a prior court order regarding decision-making and parenting time. In this case, the child had been placed for adoption by the mother shortly after his birth. She formally asked the court to place him for adoption and give up her parenting rights, and the couple proceeded with the adoption process. The biological father learned that he had a son several months later and opposed the adoption. The biological mother then decided to withdraw her request, causing the adopting couple to request the court that the biological parents' rights be terminated.

702367_page_curl_.jpgSubsequently the couple and the parents figured out an arrangement that gave the couple sole parental and decision-making responsibilities and parenting time to the biological parents throughout the week and weekends. The biological parents asked that they be allowed to seek modification in the future, and were ordered to pay child support to the couple. As more time passed, the biological parents grew closer to the boy and sought to have more time with him. Specifically, the father sought to have more time and greater say in the decision-making process regarding the son's life.

The lower court looked at the standard set in a case, In re Parental Responsibilities of M.J.K., 200 P.3d 1106 (Colo. App. 2008), to see whether continuing the original order that gave the couple the main care of the child and decision-making should continue. The Court found that it would not endanger the child and that it would be in the boy's best interests to keep the status quo because the change would potentially cause greater harm than benefit.

The father appealed and said that the Court looked at the wrong legal standard in its decision. The appellate body agreed and said that Colorado follows a presumption that the biological parent is a fit parent who will act in the boy's best interests. It would then be up to the couple to challenge the presumption and show that it wouldn't be in the boy's best interests for the father to have more time and decision making in put, and that it is in his interests for the order to remain in place as is.

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February 10, 2013

COLORADO ALIMONY AND DIVORCE: POTENTIAL 2014 CHANGES (Part 1)

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As experienced divorce attorneys in Denver, the lawyers at Plog & Stein, P.C, have seen, over the years, various changes to the law related to many aspects of both divorce and custody statute. From time to time, the state legislature, with some input from the bar association (not always listened to), decides to make changes to the existing body of work that encompasses what I will call the family law statutes. This has included simple changes, such as adjusted child support guideline amounts to reflect changes in economic trends, or changes to the timing of the filing of certain pleadings or documents in a court case.

However, from time to time, there are also sweeping, and radical changes which ultimately get enacted into law. Pending before the legislature is a bill, which if passed, stands to radically change the way courts assess maintenance, or alimony, in Colorado divorce cases. Again, at this stage, it is only a proposal. That being said, the rumors among learned and seasoned family law attorneys, and some judges, is that the bill will likely be passed, with the new provisions taking effect for Colorado divorce cases filed after January 1, 2014. The specific bill is House Bill 13-1058, and must still meet both state senate and the Governor's approval before becoming law. Again, the prevailing rumor right now is that this will happen. The question then becomes how does this affect you, the litigant in a Colorado divorce?

Alimony, or maintenance, stems from C.R.S. 14-10-114 and is essentially court ordered spousal support to be paid from one spouse to another. Factors going into an award of maintenance include incomes, financial needs, length of the marriage, time for one spouse to attain financial self sufficiency, etc. Maintenance in divorce cases has always been somewhat of a gray area or subject. Unlike child support, there has been no guideline or formula. Thus, how much maintenance and for how long has always been up to a judge's discretion. Discretion can vary from judge to judge and court to court.

This posting is not intended to weigh in on whether the proposed changes are good or bad, but rather to identify the significant proposals and potential effects upon the practice of divorce and alimony law under Colorado statute. From a cursory reading of the Bill, it appears that the significant changes coming are as follows:

1. GUIDELINE AMOUNT: As with child support, the proposed new legislation sets forth a formula related to how much alimony should be paid, and a time table for suggested appropriate lengths for the payment of it. A cursory read of the bill seems to indicate that the temporary maintenance formula set forth in C.R.S. 14-10-115 regarding 40% of the higher earner's income minus 50% of the lower earner's income will be applied to awarding maintenance at a final or "permanent orders" hearing. However, unlike the child support statute, the Bill indicates that the guidelines are not mandatory and are not a "presumption." At the same time, the Bill seems to indicate that a court must consider the guidelines and set forth specific reasons for its ruling should it differ from such. Language set forth in the draft indicates that primary purposes of the proposed guidelines are to enhance "predicatability" in alimony cases, which in theory will then promote settlement.

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January 30, 2013

THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (Round 5)

No one rushes to something chaotic and potentially painful. Divorce can be just that. The decision to be made is not one to be made with haste, but rather with thoughtfulness and strategy in mind. The Denver divorce attorneys at Plog & Stein, P.C., are ready to assist you in assessing the right time to get your divorce case filed. Each case is different and each set of circumstances can lead the conclusion of whether or not the time to start the divorce process is now. As part of the on-going continuation of the article or posting on the subject, below are more scenarios related to the the timing of filing your Colorado divorce.

15. My employer may transfer me to Minnesota and my wife wants to stay here with kids. WAIT

The answer of "wait" in this scenario primarily relates to the children. The uncertainty that comes with divorce can bring great emotional and financial strain on anyone. Likewise, a move to another state also comes with its own set of challenges, whether related to finding a new home, new schools, finances in general, or otherwise. It would make no sense to file for divorce only to find out a few weeks or months later that you are definitely being transferred to Minnesota. Filing for divorce in Colorado will start the litigation process, which will include making decisions regarding visitation, custody, or perhaps sale of the marital home. Thousands of dollars could be invested in the process trying to arrive at a resolution, only to find out shortly thereafter that things have changed. For example, a visitation and custody schedule could be reached which will become moot the minute you leave for Minnesota. Likewise, you may come to agreements or reached orders related to who will keep the marital home, sale of the home, etc. which could become impractical if one party moves to another state. Furthermore, one could find himself or herself in a situation in which he or she is living in one state and fighting a legal battle in another. Another facet of this scenario and answer relates to the notion that the wife may change her mind and decide she will come, with the children, to Minnesota. If everyone moves together, Minnesota would ultimately become the proper state to deal with the divorce issues, as well as the child issues. If one elects to file, then move, the children and the case will likely remain in Colorado. In essence, it is better to have clarity in your personal life before going into the unknown that comes with a divorce case. The lack of clarity can ultimately have an impact on the outcome of that case.

16. Our house is on the market and we have a couple of offers. WAIT

A common aspect of any divorce case can be what to do with the marital property, including the home. It is not uncommon for people to argue over this issue in terms of whether one party will keep the home, will the home be sold, and how, if sold, the money will be divided. With the home on the market, it would be more prudent to wait until it is sold before filing for the divorce. If a divorce is filed and then the home is sold, the proceeds could be tied up for quite some time without either side really being able to utilize the funds, absent an agreement. Pursuant to C.R.S. 14-10-107, property may not be disposed of while the divorce case is pending. Better to let the home sale go through, discuss how the funds will be allocated or divided, thereby potentially removing any legal argument or battle over division or use of the proceeds. Additionally, if the home is on the market and the divorce is filed, one party could be ordered to leave by the court within a few weeks of the case commencing. In that instance, one party could either be left holding the proverbial bag in terms of paying the mortgage on his or her own. Conversely, one party could be out of the home, yet still ordered to pay on the mortgage. Generally, housing is going to be the largest monthly cost that a party in a divorce case will pay. Why not get the issues related to the marital home, including division of any proceeds, resolved prior to giving the courts power over the issue?


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January 17, 2013

When Child Support and Presumptions of Paternity Collide

A person paying child support in Colorado is generally the child's or children's biological mother or father. Occasionally, it is someone who has assumed all the responsibilities and rights of a parent through adoption or signing an 'Acknowledgment of Paternity" form. All create an obligation to pay child support if the couple either divorces or one files to receive government-issued benefits. Men who have established a parental relationship by signing an Acknowledgment of Paternity, can find themselves in complicated situations either establishing their own biological tie to a child when the mother is married to another man, or signing an Acknowledgment of Paternity and then discovering the child is not his.

Denver area Family Law Attorneys, Plog & Stein, have witnessed a lot of unique family situations in the pursuit of advocacy and resolution. No matter how odd or complicated you feel your personal situation is, one of our experienced attorneys is here to help you sort it out.

The Colorado Court of Appeals assessed a specific legal question that arose from a child support case where the lower court determined a man who signed the Acknowledgment of Paternity form was the presumptive father and not the wife's ex-husband who fathered the child while they were still married. The mother was dating the man who later signed the Acknowledgment of Paternity while she was married. She conceived the child during her marriage and then divorced while she was still pregnant with no discussion or acknowledgment of her pregnancy by her or her husband in any of the paperwork or proceedings. Her boyfriend signed an Acknowledgment of Paternity and had his name placed on the birth certificate for the child after they moved in together, even though there had been tests that revealed the child wasn't his.

262875_5749.jpgThe mother and the boyfriend ended their relationship after several years of the boyfriend acting as the child's father. The boyfriend sought parental responsibilities for the child, and was granted parenting time. The mother later sought benefits from the state of Colorado and the local enforcement unit, based on information she submitted, pursued her ex-husband for child support. A DNA test established a 99.99% probability that he was the father. The enforcement unit also discovered that the boyfriend signed the Acknowledgment of Paternity form and asked the court to help determine who was the child's legal father.

The Court of Appeals ultimately upheld the lower court's decision granting the boyfriend parental rights and child support responsibility. The search for a father to assume Colorado child support obligations led to the court choosing which competing presumption of paternity outweighed the other. You had the ex-husband who fathered the child during the marriage and was shown by genetic testing to be the biological father, and the boyfriend who voluntarily assumed responsibility and had formed an actual relationship with the child. This was all seriously considered by both the lower and appellate court because the child had a greater stake in the outcome beyond the child support determination. Legal presumptions are not, by themselves, considered to be conclusive. They were meant to be evaluated to determine what is in the child's best interest.

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November 30, 2012

Making It Through The Holidays While Contemplating Divorce

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Thanksgiving has come and gone and now we are approaching the winter holidays, including Christmas and Hannukah. The holidays are wonderful times of the year for families and especially children. These upcoming days can be particularly stressful for couples contemplating divorce in the New Year, while remembering happier times.

Putting off filing for divorce until after the holidays is quite common. However, do not allow your sadness and tension to put a damper on the excitement for your children. Here are a few tips on how to make it through the end of the year.

Try and make this holiday season extra special. Perhaps being together with family during this joyous time of the year will allow you and your spouse to reconsider the impending divorce. It might be a time to sit down and consider counseling or mediation to resolve some of the issues prompting your decisions.

Most importantly, focus on your children. They are about to be impacted by decisions that you and your spouse are about to make, although they have had no input in the decision process. Allowing them to see that you both love them and are able to communicate, without fighting, will help them to accept the separation once it becomes a reality.

Go out and buy holiday decorations and decorate the house together. Go shopping and buy some of the items on the children's wish list, including something for yourself. Just remember not to go overboard. The last thing you want is to have large credit card debt added to the stress of going forward with the divorce at the beginning of the year.

If you and your spouse have joint credit cards or bank accounts, budgeting during the holidays is important so that one spouse doesn't attempt to outspend the other. It can also be a good time to begin obtaining separate banking accounts and credit cards to make the financial transition easier later.

Try doing things that are inexpensive. Consider going to your children's holiday festival at school, riding around and looking at holiday lights and displays, lending a hand to an elderly friend or relative and attending a holiday service at a place of worship of your choice. Create fun traditions that can be transitioned into your new life after the divorce is final.

The timing of filing for a divorce is never easy and going through the holidays with this on your mind can be overwhelming. Embracing the holiday traditions and focusing on making this a special time for your children can help you to successfully navigate the season.

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November 15, 2012

THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 4)

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After practicing as a divorce attorney in Denver for over a decade, I have come to determine that there is no one "right time" to file for divorce. The timing for getting your divorce case started can depend on a wide array of factors. These factors can be financial, logistical, child related, or otherwise. Thought there is no one right time, there are certainly pivotal factors or events that should be considered when determing the time is right to end your marriage. Continuing with our April 2012 posting regarding the topic of filing your divorce and when, set forth below are more of the promised answers on the subject to consider. No case or set of facts is exactly the same, as each family is different. At the same time, there are some instances in which that right moment comes along.

12. I just cashed out my $50,000 stock account. WAIT

I answered this question with "wait" for various reasons related to disposition of the funds and the fact that they may be largely unusable once a Colorado divorce case is filed and while it is pending. Specifically, C.R.S. 14-10-107 sets forth an injunction which prohibits essentially the disposing or spending of assets such as this while the case is pending, but for the necessities of life. The stock account was definitely cashed out for a reason. If the intent in this instance was to use the funds on a vacation, for the purchase of a vehicle, to pay for your child's college, or for some other personal reason, holding off on the filing of the divorce will allow the person to make those expenditures without issue. Once the case is filed, one can presume it is likely that the court will divide the $50,000 equally as a final resolution, which could be months or more down the road, depending on which county the case is in. If significant purchases are made prior to the divorce being filed, the property purchased would still be subject to division. Nonetheless the account holder has at least had a chance to spend his or her stock proceeds as he or she sees fit. Furthermore, let's say those proceeds are used on a vacation or for your child's tuition. You can't really go back and divide those funds already expended later. Certainly, any remaining funds would likely be subject to division, but the account holder, by waiting a while to file for divorce, will at least have had options in terms of deciding how to spend those proceeds prior to filing the divorce case.

13. We have been separated for 6 months and my husband says he wants to move back home. FILE

In this situation, the parties have been physically separated for quite some time. At the same time, the presumption is that both parties own the home. As such, one would think that legally the husband can just move back home as he sees fit. In reality, he can, unless action is taken. As mentioned above, C.R.S. 14-10-107 sets forth an injunction which takes effect when a divorce case is filed, proscribing or prohibiting certain actions on the part of either party. One of the major tenets of the injunction relates to disturbing the peace of the other party. Most Denver area divorce courts ascribe to the theory that once the other party is served, he or she cannot just come and go as he or she pleases from the marital home if he or she has already moved out. In essence, most courts will view such to be a violation of the C.R.S. 14-10-107 injunction related to disturbing the peace of the other party. To have the legal power to keep your spouse from moving back in, coming and going as he or she pleases, etc., you must file for divorce. People separate for a reason and no one needs the acrimony and fighting that can affect their daily lives, or spill over onto the children. In addition to remedies that can be sought in your divorce case, such as contempt of court, some law enforcement entities will actually view someone coming into the marital home, uninvited, after separation and filing of a divorce case, as criminal trespass. The hope will always be that things never go that far. Sometimes they do. In essence, if you want peace in your home and the security of knowing your soon to be ex-spouse cannot just come and go, get your case filed.

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October 28, 2012

COLORADO CHILD SUPPORT AND YOUR "DISABLED" CHILD

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As child support lawyers in Denver, the attorneys at Plog & Stein, P.C. deal with simple and intricate matters related to child support. Though most child support cases are fairly black-and-white, with incomes and other factors which lead to a child support calculation and monthly figure being apparent, there are instances in which deviations from the norm are warranted under statute. One such instance relates to children with special needs and the financial ramifications that may ensue as a result of such, and as per statute.

Specifically, C.R.S. 14-10-115, the general Colorado child support statute, sets forth two instances in which a child's disability may impact child support. One such instance relates to when the duty to pay child support terminates. The other concerns disability payments a child may receive from the Social Security Administration for his or her disability.

The general rule of thumb followed by Colorado family law attorneys is that child support, or the duty to pay such, terminates when a child reaches 19 years of age. However, there are exceptions, one of which is that child support can extend beyond that age for a child who is "disabled." Specifically, C.R.S. 14-10-115(13)(II) states that child support can continue "If the child is mentally or physically disabled, the court or the delegate child support enforcement unti may order child support, includng payments for medical expenses or insurance or both, to continue beyond the age of nineteen." However, statue does not necessarily define "disabled". In many instances, disability is readily apparent. In others, disability may not be readily seen, such as in cases of autism. Statute makes no distinction and, again, includes "mental" as well as physical. It is often the case that parents will obtain Social Security benefits for a child, which can continue after the child reaches age 19.

Most courts will take the designation of "disabled" by the Social Security Administration to be proof enough of the disability. However, some courts may take a deeper look into the factual circumstances. One can receive Social Security, yet still be able to work, function independently, go to school, etc. Each case is different from a factual standpoint and a Denver child support attorney should be able to assist in ascertaining the strengths and weaknesses of a request to extend child support beyond age 19 due to disability.

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October 7, 2012

DENVER CUSTODY: A TALE OF TWO CASES

With many years as a custody lawyer in Denver under my belt, I have come to draw certain assumptions about the law, the court system, and how things work. Most family law attorneys use those assumptions, which are formulated with experience, legal knowledge, and a keen sense of each court, to guide them in their representation of their clients. However, as in any profession, from time to time, an attorney may hear of situations or outcomes that go against what those years of experience tell them.

In the last two weeks, I have heard of two similar Denver area custody cases, in two metropolitan area counties, with almost idential facts and two widely different outcomes. Though one might think the law is the law and the facts are the facts, the reality is that each case can be decided based solely on the specific court or judge's beliefs, perspective, and perception of the law. Though this is a fact I have known for sometime, I still try to believe that the law is the law and the facts are the facts. I guess I am the eternal optimist. I have written at least one blog posting regardng the subjectivity a court can bring to a family law case. Below, I will use the fact patterns of the two cases I heard about to give a real life example to my readers.

Before getting into each fact pattern, I will let you know that the court's, counties, and judges will not be divulged. Likewise, specifics will be altered. The gist of each scenario will not.

In the first case I heard about, the father of a child had left the state of Colorado with that child, roughly 5 months before the case was filed, and had taken the child to California. In that case, the mother had filed a Denver area custody case around the time of the fifth month. Along with the filing of the petition, the mother also filed an emergency motion indicating that father had fled with the child, concealed his whereabouts, and denied any contact. In that case, the court granted mother's emergency motion and entered an order granting mother custody and authorizing the issuance of papers for mother to retrieve the child, with the assistance of law enforcement, in California. Mother's emergency motion indicated that the child was in "emotional danger" based on being removed from Colorado and her presence. In this instance, the court granted the motion "ex parte," meaning without having heard from father. Father, upon being served with the petition and the motion, roughly two weeks later, contacted an attorney to deal with the issue. As part of the process, father filed an emergency motion of his own, indicating that he had left Colorado based on a pattern of domestic violence, had provided mother information where he was, has received mail from mother during the time in question, and had in no way concealed his presence. In scenario one, the court did not care and ordered the child returned to Colorado and mother's temporary custody.

In the other case, in a completely different county, the father left Colorado with the children, for New York, roughly a week before mother filed her custody case. In addition to the filing of the petition, mother filed an emergency motion, which contained similar language to the emergency motion filed in scenario one. In that emergency motion, mother sought an emergency order, ex parte relief, and orders regarding return of the children to Colorado. In scenario two, mother's motion was initially denied becasue father was not yet served with any of the court pleadings. In scenario two, mother filed a second motion upon father being served. In scenario two, the court did not grant mother's emergency custody motion, but rather indicated she could set the matter for a forthwith hearing roughly a month down the road.

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September 29, 2012

THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 3)

The question of whether to file for divorce is not one easily answered. As a divorce attorney in Denver, I often meet with people pondering divorce, yet not quite sure whether they really want to go through with it. Deciding whether to completely alter your life, and perhaps that of your children, is a decision that should be weighed seriously. I, as well as all of the attorneys at Plog & Stein, am never one to push a person on the verge of making that decision one way or the other. It is not an attorney's place to make that life altering decision. It is an attorney's place to advise as to ramifications, outcomes, the legal process, etc. related to that divorce. A key factor in determining whether it's time to file for divorce, beyond the emotional notions of whether a marriage is truly over, relates to timing and the facts and circumstances currently at hand.

Below are more questions and answers stemming from my April 2012 posting regarding the right time to file for divorce in Colorado. Each case is different, yet some circumstances may dictate that it's time to file in most. Others may lead to the conclusion that it might make sense to wait. The answers set forth below are general in nature, but may assist those sitting on the proverbial fence.

8. Our oldest child is 18 and turns 19 in 10 months. WAIT

I answered this question with "wait" from the perspective of a married person, in a still in tact relationship, who would likely end up paying child support. As the child in this fact pattern is no longer really a child for Colorado custody purposes, but rather an 18 year old adult, the only relevant issue is child support. Presuming the person asking is the one who will likely be paying, it would be more prudent to hold off on filing until the child turns 19, which is the age that child support generally stops. If possible to hold off until age 19, there will be one less issue to litigate and one less potential strain on cash flow. Depending upon which county the case is filed in, the child could turn 19 by the time the case is completed. It makes no sense to spend money litigating an issue that will soon go away as the child emancipates.

I could also answer this question from the perspective of the payee, in that the child's financial needs may be better met with the family in tact. As Colorado child support is calculated based on a statutory formula and the legislature's idea of what is needed monetarily to raise a child, one might find himself or herself receiving less in child support than what he or she is accustomed to spending on the child. Of course, if there are circumstances, such as domestic abuse or other extreme issues, which make immediate filing a necessity, then file right away. Absent those, it might make sense to hold off until the last child is truly a child no more.

9. My husband just got pulled over for DUI with the kids in the car. FILE

Driving drunk with children in the car is not only a safety issue, it also becomes a legal issue with ramifications for both spouses. If contemplating divorce and your spouse is pulled over for DUI, the time is right to file. Many Denver area custody courts take DUI seriously, whether kids are in the car or not. A DUI alone can potentially tip the scales in a Denver visitation or custody battle. Alcohol is an intoxicating substance, just as with other drugs. The general presumption is that someone with a recent DUI has a substance abuse problem which may make them a potential danger to the children. The concern a court will have regarding the safety of the driver with the children grows exponentially when there are children in the car. At risk of sounding mercenary, from an attorney's perspective, this is the type of situation that can be a game changer in a custody battle. From an attorney's perspective, when facts arise which can change the outcome of a case, it is best to seize the day and act upon them. Setting aside the legal aspects of this scenario, the reality is that a parent who drives drunk with the children is a danger. As such, they should be monitored. Additionally, driving drunk with the children can often lead to a criminal charge of child abuse, and potential involvement with your county's social services team. In such instances, both parents may be looked at. Filing immediately may take any scrutiny off of you, leaving it solely placed on the deserving party, your soon to be ex.

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