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.

Continue reading "COLORADO ALIMONY AND DIVORCE: POTENTIAL 2014 CHANGES (Part 1) " »

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?


Continue reading "THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (Round 5) " »

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.

Continue reading "THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 4) " »

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.

Continue reading "DENVER CUSTODY: A TALE OF TWO CASES " »

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.

Continue reading "THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 3) " »

August 28, 2012

THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 2)

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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 Denver 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.

Continue reading "THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 2) " »

July 21, 2012

Part 2: BE READY TO TESTIFY IN YOUR DENVER DIVORCE OR CUSTODY CASE

My last blog posting endeavored to get you, the litigant in a Colorado divorce or custody case, ready to testify in court. In continuing the topic from that posting, below are more tips to prepare you for that day. As a family law attorney, the primary goal is seeing each client finish a case with their desired outcome. These tips are important, as you, too, are an integral part of the process.

5. Do not try to out fox the other attorney with your testimony. Let your Denver family law attorney do that with his or her re-direct examination. Your job is to answer questions. The attorney's job is to frame the story. Your attorneys job is to also do the crafty thinking. Work together as a team. Though the opposing attorney's job is to trip you up or make you appear incredible, the truth is what matters most. Just listen and answer the questions, truthfully.

6. Along this same line, do not try to be cute, overly whitty, or arrogant with your responses. Courts can become quite annoyed with a pompous, cocky, or holier-than-though witnesses or party. Be polite. Be plain. Keep the flare and your opinions to a minimum. You want the judge to like you.

7. Do not play the religion card. I, personally, have nothing against religion. However, most courts do not perceive that religion really has a place in a hearing regarding alimony, visitation, or any other family law subjects. The religion card, as I call it, is most often used in custody hearings. People often think that judges will equate their going to church or professing their faith as a sign that they will be a better parent than their ex. In reality, judges often roll their eyes and find such behavior to be insincere and simple pandering to the court's potential own religous view points. Keep in mind that though you may be Christian or Moslem, your judge might be Jewish or an Atheist. Again, nothing wrong with religion, but attempting to use it in your testimony may very well back fire.

8. Be cool, calm, and collected in the courtroom. No eye rolling, no head shaking, no blurting out, "liar," when your ex is on the stand. The judge is watching you. You are a caring mother, father, husband, or wife focused on professionally dealing with the issues at hand. Again, off the stand theatrics or behavior can also make or break a case.

9. Don't look to your attorney or family or friends in the gallery for answers when testifying. Be ready to answer questions. When you look to others, you look stuck on the question and the answer you give may appear fabricated. If those supporters actually try to mouth your answer to you the judge will blow a gasket. When making an answer you find to be important you might want to look at the judge. Let him or her see the sincerity in your eyes.

10. Don't be overly emotional. Divorce and custody are emotional subjects. Sometimes people cry. We can all get choked up when discussing our children or something upsetting related to them. A tear now and then, particularly when related to a subject which should be emotional, can go a long way. Hamming it up to the point of crying about mundane financial or normally non-emotional subjects in your divorce case might win you an Oscar, but it will not be viewed well by a judge. The court wants the facts, minus the drama.

11. Do not argue with or show your anger towards the other attorney. It is quite common, in a Denver visitation or custody case, for one side or the other to raise the issue of the other parent's temper. Attorneys are just waiting to set the other party off. They are waiting for you to show venom and anger. So are judges. If you can't keep your cool on the stand how can you possibly be even tempered when dealing with your chidren? Don't get sucked into an argument. Let you attorney do the ugly work. Keep an even keel and tell your story with conviction, not anger.

Continue reading "Part 2: BE READY TO TESTIFY IN YOUR DENVER DIVORCE OR CUSTODY CASE " »

July 8, 2012

BE READY TO TESTIFY IN YOUR DENVER DIVORCE OR CUSTODY CASE, Part 1

Over the course of the last few weeks, my blog writing has been put on hold due to a whirlwind tour of hearing-after-hearing in various family law cases throughout the Denver metropolitan area. After this unprecedented string of trials, I had a chance to step back and assess all that I had seen. This run of courtroom battles included custody and divorce cases, both routine and emergency in nature. Having had a chance to look back and ponder, I determined one thing: there are attorneys out there seemingly taking little or no time to discuss simple, basic rules for testifying with their clients. Over my years as a divorce lawyer in Denver, I have never seen such a string of parties and witnesses wholly unprepared to testify. I cannot complain, as things worked out quite well for each of my clients.

When a Colorado custody or divorce case is contented, meaning issues are being fought over, the end result may very well be a final hearing. At this hearing, both parties will generally be required to get up onto the stand to testify, much as you might see in a movie or on TV. In the practice of law, each word an attorney speaks or writes may have significance to the outcome of a case. Likewise, each word a party utters on the stand, coupled with his or her demeanor and presence, can have an impact on how the judge or magistrate rules. Judges listen intently to party testimony, focusing not only on content, but body language, temperment, and the credibility of the statements put forth.

As Denver family law attorneys, it is important to prepare clients for hearing. This posting is not intended to discuss issues of content of testimony to a great degree. At the same time, content is important. Below are some of things parties need to know prior to taking the stand:

1. In any hearing, you will generally be subject to direct examination, cross examination, re-direct examination, and potentially re-cross. With direct examination, your attorney will generally ask you questions designed to elicit a substantive, non yes-or-no response. As such, your attorney should try to provide you a list of questions you will be asked ahead of time. This way, you can work on your answers or ask the attorney ahead of time regarding what he or she is looking for in terms of a response. You do not want to be on the stand guessing what your attorney may need you to say or what may be relevant to the judge's ultimate decison. On cross examination, the other attorney will get to ask you yes-or-no questions designed to either refute that which you testified to when asked by your attorney or to elicit other information helpful to their case. With re-direct, your attorney will then get to ask you other questions based upon the cross examination, for either rehabilitating that which you have stated, or clarifying answers you stated on cross examination. Recross, if allowed, will be the same as cross. It is important for parties to know the procedural flow of testimony and to know that both attorneys will generally get two bites at the apple.

2. Understand that with your testimony you are essentially telling a story. You should keep focused on that story, with the knowledge that your attorney is there to help you tell it within the confines of the rules of evidence and courtroom procedure. You should be aware of the specific facts or points your attorney is trying to get out of you to tell your story and make your side of the case. Discuss what your attorney is looking for prior to hearing, including the broad subjects of importance to your case. When testyfing as to child support, Denver area judges want to hear the relevant factors relating to the issue, not side issues which have no bearing on the subject. Let your attorney guide you as to each topic. This will help you stay focused and on task.

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June 14, 2012

YOUR COLORADO CUSTODY CASE: HELPING YOUR ATTORNEY HELP YOU

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Having dealt with hundreds of Colorado custody cases over the years, I am well versed in what is needed to effectively prepare for and litigate battles regarding visitation and decision making. The key to handling custody matters truly rests with preparation. However, this preparation is not just related to your final hearing. The preparation begins from day one of the attorney/client relationship. It involves changing behavior patterns, changing ways of thinking, preparing to deal with the custody expert(s) who may be involved in your case, changes in terms of how you speak to your children, and more.

We have all heard the catchy sports proverb, "there's no 'I' in 'team'." There should also be no "i" in "attorney/client relationship," though linguistically there are technically three. By this, I mean that preparation in a custody case truly takes a joint effort. The skill of phenomenal Denver custody lawyers, with great experience and courtroom skill, is only going to go so far without the input and assistance of his or her client. Attorney and client should truly be a team in preparing to go through the custody case.

Over the years, I have arrived at the conclusion that the best results are gained for a client in a custody case when he or she is involved from the ground up in terms of preparation. As such, I strive to inform clients of various things he or she can do to help. I also make it a rule to try to prepare my clients for dealing with custody experts and getting ready for their final hearing. Below are some of the tools I employ, which are ultimately designed to help you, the client:

1. Writing out your story: A Colorado custody case is not just as simplistic as "I'm a good mom" or "I'm a good dad." Each case has a potential history to it. There may be things that were said or done related to the child, with the child, or with other people that may matter. The littlest whiff of information may have a bearing on the outcome of a case. Perhaps I am being a little melodramatic, but some fact from two or three years back can be pivotal. I see it. As such, I will often ask my clients to write me out their "story" or a chronology of the good, the bad, and the ugly related to the raising of their child. This chronology should include statements or actions of the other party, important events in the child's life, areas of concern, etc. I will generally ask people to go back three to four years. I don't need to know about Timmy's, who is 12 years old, potty training at age 4. I do need to know about his dad yelling at him and calling him mean names for getting a C on his spelling test at age 10. By putting past memories related to the child on paper, particularly in chronological fashion, a client is forced to organize, conceptualize, and contextualize his or her thoughts. This can assist the client with getting ready to testify in court or discussing the case with a child and family investigator or parental responsibilites evaluator. Additionally, it provides me with a written summary of facts I may need to be aware of or may use to the client's advantage. On a financial note, I often say, "I can read in 20 minutes what would take us 2 hours to talk about." Though I would love to talk to my client for 2 hours, I would rather save him or her money and receive the information straight from the source, with the ability to go back to it for reference as needed.

2. Keeping a journal: As indicated above, the past history regarding a child is important. Recent or current history matters as well. Custody cases can take as much as a year, depending on the county. A lot can happen during that time period. It is important to have clients keep a journal of things that occur while the case is pending. This should include behaviors or things said by the other party, as well as the child. A journal might be admissible in court. It might be shared with a custody expert. If nothing more, it is a way to record newer occurences which I, the attorney, might find relevant. I always instruct clients to make sure they keep the journal secured, such that neither the other party, nor the child, can get to it. The time period in which a Denver divorce or custody case is pending can be emotionally charged. This may be a good time to record events related to your ex behaving badly purely out of the motion that comes with this type of litigation. As with the chronology, the keeping of a journal may also help save money on attorney fees.

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June 2, 2012

THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 1)

At the end of April, I posted an article regarding the timing of filing your Colorado divorce case. Though I had strived to start answering questions sooner, May slipped away from me, with my children's school ending, vacations, and the busy pace that comes with being a Denver divorce attorney.

As we move into June, I am now refreshed, focused, and back in the literary saddle, ready to continue informing my readers as to all aspects of Colorado custody, divorce, and child support law. Below are what I will call "Round 1" of the answers and explanations related to the questions posed in my last posting.

As each divorce and custody lawyer in Denver has his or her own opinion, my answers and explanations are subjective in nature. Furthermore, there is no "right" or "wrong" answer and there are many differing factual variables which, in a real life divorce setting, could change the answer or explanation set forth below.

1. My husband is the primary bread winner and just lost his job. WAIT.

I answered this question with "wait" based on concerns regarding income and the assessment of alimony (maintenance) and child support. Contested Denver area divorce cases can take anywhere between 4 months and 2 years, depending on which county your case is in. That certainly would give the husband in this scenario plenty of time to find a job. C.R.S. 14-10-115, and case law interpreting such, indicates that you look to a person's employment or income potential. At the same time, the court is not going to automatically use the husband's prior income for purposes of assessing child support or alimony. The wife needs to wait a while to see what shakes out with the job search. At a "temporary orders" hearing, the court is going to look at the current financial status quo when assessing financial orders to govern while the case is pending. Likewise, if husband is still unemployed at the final or "permanent orders" hearing, this will likley affect the outcome on the issue of alimony, including potentially a claim for such against wife if she works and huband does not. A little patience is needed in this scenario, as no job for your soon to be ex spouse can either leave you receiving less, or even potentially paying more.


2. I am the primary bread winner and got laid off a couple of months ago. My husband works. FILE

In essence, the answer of "file" to this question is almost the reverse of the answer to Question #1 above. If you have been the primary breadwinner and the one who will likely be bearing the financial burden of supporting the other party, it is better for you to file your Denver divorce while you are in a lesser financial position, thereby making it less likely for the court to ding you financially in a battle over alimony, child support, or attorney fees. You must keep in mind that the court will still, of course, be looking at what efforts you make, or have made, to find similar employment. Thus, the job loss is not a free pass, but could mitigate your damages in the sense of what you might ultimately be paying your spouse.

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April 29, 2012

When Is The Right Time To File My Colorado Divorce?

As Colorado divorce and custody lawyers, we hear all sorts of questions. Some require a simple answer. Others require an in-depth analysis. The question of "when is the right time to file for divorce?" falls into the latter category. Realistically, there is no one black-or-white, right-or-wrong answer. Below, I will give some examples of situations with a simple "file" or "wait" answer.

When to file, from a divorce attorney in Denver's perspective, should optimally be a strategic decision. Sometimes, sadly, it may need to be a decision based upon safety concerns. With divorce being such an emotionally charged time, people often times decide to file simply because they cannot stand one more minute being married to their spouse. In those cases "NOW" will always be the right answer to that person.

The twenty five answers below are brief, yet arrived at after deliberation. Each question is answered as if the question posed is the only issue present in the fact pattern. Each question is asked based on the presumption that the asker wants a divorce. Consideration of each question and answer has been given based on my opinion, and the law, related to custody, visitation, child support, alimony, property division, and debt.

Over the next 2 or 3 blog postings, I will attempt to give a well reasoned analysis as to how I arrived at each answer. Remember, in the Colorado custody and divorce world, the law and logic do not alway go hand in hand.

1. My husband is the primary bread winner and just lost his job. WAIT

2. I am the primary bread winner and got laid off a couple of months ago. My husband works. FILE

3. My husband has hit me and threatened to kick me out of the house. FILE (now)

4. My wife makes $150,000 per year and is threatening to quit her job. FILE

5. We are in the process of filing for bankruptcy. WAIT

6. My husband is threatening to take the kids to Florida and not come back. FILE

7. My wife left with the kids last week and is in Arizona. FILE

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

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

10. I just got pulled over for DUI with kids in the car. WAIT

11. My I just discovered my wife cashed out her $100,000 401K. FILE

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

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

14. My wife just moved out of town and left the kids with me. FILE

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April 10, 2012

Pre-nuptial Agreements And Your Colorado Divorce

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Though not generally common, every so often, I will be presented with a Denver area divorce case in which the parties have entered into a pre-nuptial agreement prior to getting married. With the ever changing landscape of marriage and divorce, people are getting married at a later age. They are getting remarried with the taste of a nasty divorce fresh in their mouths. They are going into marriage with the knowledge that roughly 1 in every 2 marriages end in divorce. Older people marrying have likely already accumulated some assets or wealth prior to exchanging vows. People married once before have already learned the ins-and-outs of property division and how assets are viewed by Colorado divorce courts. In these instances, people ask, "how can I protect myself and my property in the event of a future divorce?" One answer they arrive at is a pre-nuptial agreement. Assuming the potential new husband or wife finds the courage to raise the issue with his or her significant other, a pre-nuptial agreement can be an effective tool for protecting one's income and assets. Of course, as with any legal issue, there are rules and pitfalls that must be followed or avoided to make sure that agreement will hold water when the time comes to divorce. Hopefully, that time will not come, but one never knows.

In Colorado, pre-nuptial agreements are governed by the Colorado Marital Agreement Act, C.R.S. 14-2-301, et. Seq. Most pre-nuptial agreements primarily deal with issues regarding property and support. Property acquired during the marriage is generally going to be viewed as marital and subject to division in a divorce. Propery owned before the marriage is generally going to be viewed as separate. However, increases in value during the marriage will generally be viewed as marital and subject to division in a divorce. These are the most common issues for which people seek a pre-nuptial agreement, protection of their assets. The other major area in which people seek protection relates to alimony, or more properly, "maintenance." C.R.S. 14-2-304 sets forth the matters which people can "contract" to in a pre-nuptial agreement. Yes, the term "contract" is used, as that is how a court will generally view such an agreement.

C.R.S. 14-2-304 also sets forth other issues that can be dealt with in a pre-nuptial agreement, such as matters related to wills and inheritance, matters related to attorney fees, matters related to choice of law in terms of which state's laws will govern interpretation of the agreement, matters concerning your income and property obtained with it, and basically any other issue which can be agreed to, so long as such an agreement does not violate "public policy."

Under the CMAA, pre-nuptial agreements are deemed to be essentially enforceable contracts, so long as they are drafted in an appropriate fashion. C.R.S. 14-2-307 sets forth certain rules regarding enforceability. A pre-nuptial agreement is not enforceable if is was not entered into "voluntarily." It may also be deemed unenforceable if there was not a fair and reasonable disclosure of property and debt prior to the agreement being signed. Ensuring that an agreement will be upheld will be discussed further below. Divorce attorneys in Denver will be, or should be, aware of these statutory provisions, whether drafting an agreement or litigating the issue of enforceability.

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