February 14, 2012

VALENTINE'S DAY ADVICE FROM A DENVER DIVORCE LAWYER

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Today is February 14th,Valentine's Day, a largely manufactured holiday leading to massive financial benefits for the card, flower, candy, and restaurant industries. Every man and woman in a relationship, or most, feel the pressures of making sure gifts and sentiments of love are exchanged. Attorneys are no different. We have all heard countless lawyer jokes such as, "What do you call 50 lawyers at the bottom of the ocean? A good start." These jokes likely flow from the perception that attorneys are cold, cut throat, heartless people. Some are. However, some of us still have hearts. Though our blog is generally devoted to legal issues revolving around custody or divorce in Denver, I will devote this posting to Valentine's Day, with the call to all readers to stay together, if you can.

Over the years, I have seen countless people who come to the Denver family law attorneys at Plog & Stein at the end of their relationships. I often ponder why those relationships are ending? I also often ponder gathering statistical data on the subject for purposes of determining just what leads people to divorce. In reality, I am too busy to undertake such an endeavor. From a non-scientific standpoint, I have resolved that beyond cheating, financial issues, selfishness, or the the more tragic reasons such as domestic or substance abuse, most people split up because they just simply grow apart.

Going back to Valentine's Day, the manufactured holiday is all based on love. Every card or box of candy has a heart on it, the universal symbol of love and affection. Though it may sound sappy or romantic, I have deduced that the love once known in a relationship slips away, and the rest flows from there. Practicing Colorado divorce law takes a certain stomach. All day, an attorney is faced with sad stories of break-ups, financial strife, and people just plain treating each other badly. One benefit that flows from these observations is that I have learned what-not-to-do in a relationshp. By this I mean that I see all kinds of examples of behaviors that can lead to divorce. I then strive to do the opposite.

By all means, if there is infidelity, domestic violence, cruelty, child abuse, insurmountable substance abuse, or intentional/foolish financial mismanagement to the point of ruin for your children, there is no reason to stay together. Absent those things, there is always the opportunity to try. The institution of marriage is not just some light agreement entered into by two people for convenience, or based on a whim. Marriage is a commitment and the cliche vow goes, "til death do us part." People seem to have forgotten this ending. When things get a little rough, or something else catches their eye, too many people view divorce as the first option. We are not in junior high, changing boyfriends or girlfriends every other week. Marriage is supposed to be for life. I believe that each of us, internally, has the strength and fortitude to try. It may not be easy. The road may get rough. But in the end, if you make that commitment to your marriage, you won't have to come see us.

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January 28, 2012

No Fault Divorce And Colorado Law

While browsing the internet the other morning, I came across an article concerning the issue of "no-fault" divorce and the State of New York. After finishing the article, I started pondering what life would be like, in a legal and real world sense for Denver divorce attorneys, and the general public, if Colorado were not a "no-fault" state? I can only imagine the extra layer(s) of litigation that would ensue if grounds for a divorce had to be proven. It is not uncommon for people to come to me still believing that in Colorado they must show grounds, or justify the reasoning, as to why a divorce should be granted. Generally, in Colorado, a party need only indicate that the marriage is irretrievably broken, with no chance of reconciliation, for a divorce to be granted.

Going back to the specific article, as of January, 2012, New York granted its first contested no-fault divorce. Though laws in New York were changed in 2010 to allow for no-fault contested divorces, the first one was evidently not completed until early 2012. Sadly, the specific article related to a 79 year old woman seeking to end her 56 year marriage to her husband. On the other hand, she, or they, may have endured 56 years of sadness and fighting, forced to stay together because their circumstances did not fit into the confines of what New York statute considered legitimate reasons for divorce.

We have all seen movies, particularly older ones, in which a divorce court scene may be filled with legal debate or litigation over issues such as infidelity, cruelty,abandonment, spousal abuse, loss of affection, bigamy, or whatever other reason needing to be established for a divorce to be granted. This is no longer the case, in Colorado, and elsewhere. No-fault divorce statutes were first enacted in California in 1970. Within a little over a decade, all but two states had no-fault divorce statutes on the books, including Colorado. As a result, divorce rates throughout the nation have risen to roughly 50%. There are many arguments from both sides of the aisle as to why there should or should not be no-fault divorce. Though I practice divorce law in Colorado, I do not believe divorce is a good thing people should rush into. At the same time, I do not believe people should be forced to stay in a relationship, or tied together financially, when the love and happiness they once knew are gone, and never coming back. Beyond the increase in the divorce rate of the country, there have been other studies showing some of the positive benefits of no-fault divorce.

Specifically, a 2004 university study regarding the issue of no-fault divorce and effects thereof indicated that in states that had adopted no-fault divorce laws, there were significant decreases in suicide rates for women, rates of domestic violence, and rates of homicide by an intimate partner. These facts alone should be a basis for no-fault divorce laws. Though the intent of this posting is not to take a position on such laws, one can logically discern a benefit. When people, particularly women, are forced to stay in an abusive marriage because the law either does not provide them an out or they are unable to prove that the abuse is occuring, the likelihood of abuse or trapped helplessness would logically go up. As suggested in the study, when the abuser knows the law will allow the other spouse an out without proving grounds, he or she may think twice about committing, or continuing, the abusive behavior.

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January 14, 2012

COLORADO CUSTODY: VISITATION, DANGER, AND MOTIONS TO RESTRICT PARENTING TIME

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What do you do when your child comes home with a huge bruise on his or her back and an explanation that mom hit me? How will you handle your ex-husband getting a DUI with the kids in the car? What if your ex-wife is arrested for possession of cocaine? How will you handle your child coming home and saying she was inappropriately touched by her new step-dad? These are all situations that I have seen as a divorce lawyer in Denver. There is nothing more frightening to a parent than his or her child being hurt or in danger while in the care of the other parent. The question then becomes how do you deal with it?

No one wants to see a child in danger, period. This includes judges and most attorneys. Fortunately, Colorado statute sets forth procedures for dealing with true child emergencies. Specifically, C.R.S. 14-10-129(4) indicates that a party to a case involving children may file a "motion to restrict parenting time" in the event that such may cause harm to a child. Pursuant to C.R.S. 14-10-129(4), a motion to restrict parenting time may be filed if the child is in imminent physical or emotional danger while in the care of the other party. In such instances, statute sets forth that once such a motion is filed, the other parent's visitation is to immediately stop. Statute also indicates that a hearing regarding the motion to restrict parenting time shall occur within 7 days of the motion being filed. Though this sounds like a great legal mechanism for taking your child out of a dangerous situation, there are pitfalls in regard to taking this type of action, and most judges will take the language of statute quite literally.

The first step your Denver custody lawyer should take when assessing the potential for filing such a motion is to look at whether the danger, whether emotional or physical, is "imminent." For our purposes, "imminent" means immediate, meaning that the danger is current, or immediately forthcoming, with the resumption or continuation of visitation with the offending party. Parents often get hung up on what this means.

Using obvious examples, if a parent learns that the other has just been arrested for using crack cocaine while caring for the kids, or has just gotten a DUI with them in the car, such would be of immediate concern to their safey. If a child comes home with a cigarette burn or a black eye, with the story that mom or dad did it, such would be immediate or "imminent." A suicide attempt by a parent may also pose an imminent danger to a child. These are acute, ascertainable examples of things I have seen. There are other types of danger that are not "imminent." A parent may find out that the other parent snorted some coke three months ago at a party. Though certainly a concern, there is no provable immediate threat. A parent might indicate that the other parent is sleeping all day and not caring for the child. Though this could certainly be a danger, it is not of an immediate nature such that a motion to restrict parenting time would likely be sustained. Motions to restrict entail current, immediate threats of a serious physical or emotional nature. They are not to be based on concerns of long term damage to a child based on less than quality care. There are, of course, potential remedies to deal with those types of situation set forth in statute.

The next issue to assess is whether there is really a "danger" which needs to be addressed. In the family law world, danger truly means danger. Cigarette burns, physical abuse, drug use, alcohol use to the point of not being able to function, sexual abuse of a child, severe mental health episodes, or domestic violence with the children in the home are true dangers. Daddy or mommy yelling at the child are not. Daddy repeatedly telling the child he is a stupid little fu*^#er likely is. Mommy looking at internet pornography while the kids are asleep or with the other parent are not. Mommy sharing internet pornography with the child is. Daddy not doing the homework, thereby leading the child to get bad grades is not. Daddy repeatedly telling the child he cant's go to school because he thinks aliens will attack is. A spanking done appropriately is not. Bruises and welts on the back caused by a belt are. Mommy's new boyfriend having been arrested 5 years ago for domestic violence is not. Daddy shooting his new girlfriend with a crossbow is. My point is that danger can come in all forms. Though each of the scenarios set forth above is certainly not in the best interest of, nor optimal for a child, not all of them constitute a danger, or imminent danger, to the court as anticipated by C.R.S. 14-10-129(4). One must identify a true danger to his or her children prior to filing a motion to restrict parenting time.

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January 6, 2012

NEW 2012 DEADLINES/TIME FRAMES IN COLORADO DIVORCE AND CUSTODY CASES

As with the coming of any new year, 2012 stands to bring change to Colorado, and the world as a whole. This, of course, incudes the world of family law. Commencing January 1, 2012, Denver divorce and custody attorneys are faced with changes to the Colorado Rules of Civil Procedure regarding deadlines and time frames. Though none are earth shattering and many are variations of old rules, they can certainly have an impact on a case if not followed. These changes affect the time frames for responding to motions, issuing discovery, declaring witnesses, and general time frames regarding filing and case management.

Perhaps the most significant change relates to the interplay of C.R.C.P. Rules 5 and 6, as relates to the filing of pleadings and deadlines. C.R.C.P. Rule 6 used to provide for an additional 3 days for a person to file certain documents with the court, such as a response to a motion. This 3 days depended upon how the original document being responded to was served. For example, though C.R.C.P. Rule 121 (1-15) indicated that a response to a motion was due within 15 days of transmission of that motion, Denver area divorce attorneys knew that so long as the motion was mailed, e-filed, or essentially sent via means other than actual service or hand delivery, there would be an extra 3 days for the response to be filed, or 18 days in the aggregate. As of January 2012, we attorneys, and parties not represented by an attorney, no longer have those 3 extra days. C.R.C.P. Rule 5 still makes allowances for filings on a Monday or the day after a court holiday which might otherwise have been due on the weekend or on that holiday.

Fortunately, though we have lost the extra 3 days added to the time frame for submitting various filings, such as responses, the state has seen fit, pursuant to revised C.R.C.P. Rule 121 (1-15), to extend the time for filing a response to a motion, from 15 days to 21 days. Thus, in some instances, we have lost the 3 days, but have gained more time to take action. Sadly, the time to file a reply to a motion (essentially responding to a response for those non-attorneys) will still remain 7 days. Until a few years ago, that 7 days was 10. Fortunately, the powers-that-be did not lessen that time frame further. I presume most divorce and custody attorneys will be thankful for the extra time to file responoses to motions, as complexities can create the need for more time to respond in some instances.

Other lesser changes handed down will have some bearing on domestic relations cases. In new divorce or custody cases, the intial status conference must be held within 42 days of the case being filed, instead of the prior 40 days. With contempt of court actions, C.R.C.P. Rule 107 now indicates that the contempt motion and citation must be served 21 days prior to the first hearing, generally the advisement, as opposed to the previous 20 days.

Prior to final hearings, whether related to pre-decree divorce or custody issues, or significant post-decree actions, such as child support or parenting time modifications, attorneys have been required to file what is called a "joint trial managment certificate," which sets forth the issues before the court, party positions, witnesses, exhibits, etc. 10 days prior to the hearing. That time frame, as per C.R.C.P. Rule 16.2, has now been shortened to 7 days. Likewise, the time frame for exchanging exhibits has also been shortened to 7 days, down from 10 as well. These changes give attorneys more time to prepare during those final days before hearing, including gathering any additional documents/exhibits. Many judges are "cool" about the JTMC deadline and will often not hold attorneys to the strict 10 days for filing. Additionally, when two attorneys can work together (such as with one of my hearings set for next week), they will often agree that exhibits can be exchanged in less than 10, or now 7 days. In those instances in which the court or opposing counsel holds steadfastly to the strict deadlines set forth in the rules, attorneys can take comfort in knowing there are now 3 extra days to accomplish these tasks.

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December 4, 2011

Businesses, Property Division, And Your Denver Area Divorce

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As indicated in prior blog postings, one of the major topics in a Colorado divorce case can be the division of marital property. Property can come in all shapes and sizes, and is not limited to cars, houses, and retirement accounts. Every so often, a divorce case will come along in which one, or both parties, owns a business. Just like any other piece of property, that business may have a marital component to it, and a cognizable value.

One of the first things that comes out of most people's mouths when discussing a business with the Denver divorce attorneys at Plog & Stein is the notion that the value of a business is essentially calculated by looking at assets minus liabilities, and nothing more. The other thing that seemingly comes out of most people's mouths is the idea that only a business with inventory or significant property, such as a car dealership or a store, has any real value. Both common notions are wrong when it comes to property division in a divorce.

There are many types of businesses one might have, or fight over. We have seen people with liquor stores, restaurants, car dealerships, medical practices, legal practices, and more. A business does not have to have inventory and property to have value. A business does not have to sell something. A single attorney or accountant sitting alone is an office can constitute a business with marital value. Service industry businesses are businesses, too.

Once your divorce attorney determines the existence of a business, you will need to have discussions regarding figuring out the marital components to the business. The business may have been owned prior to marriage. If so, as with other property, there must be a determination as to whether there has been an increase in value during the marriage, to be divided as part of the property division. There may also be partners or other shareholders, whom will also need to be factored in. Once it is determined that there is likely a marital componenet, the next step will be figuring out a value. The way this is normally done is through the hiring of a business valuator.

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November 23, 2011

Tis' The Season to Be Jolly: Holiday Visitation And Your Divorce/Custody Case

Every year between late October and mid-November, people throughout the land start thinking about the holidays. The Thanskgiving turkey, and a little football. The lights, trees, and all the gifts Santa Clause will bring (or needs to buy at the store). For many people this is a magical time of year. For divorce and custody attorneys, it can be the start of an ugly season, filled with fighting, battles over what orders really mean, emergency motions (that usually aren't really emergencies), and a general lack of holiday cheer in the family law legal world.

In almost every custody case, or divorce with children, I have taken part in over the years, people are in need of holiday orders. As we all know, holidays, whether Christmas, Hannukah, or a child's birthday can be some of the most special days of the year. In any battle regarding custody or visitation, the primary issue being fought over is TIME WITH THE CHILDREN. The most sought after of all is holiday parenting time. In most instances, people are in need of a schedule delineating who will get what holiday in what year. In probably 5 instances over the years, I have seen people arrive at visitation agreements which simply state, "the parties agree that they have the abilities to work holidays out on their own, with no set schedule." That's 5 out of hundreds. I have seen a few cases in which the parties agree, "holidays will be spent with whichever party is exercising his or her regular parenting time." I have seen this language in about 4 cases. Most people need orders regarding the holidays. Most agreements, or orders handed down by a court, contain specific provisions. Despite such, problems somehow seem to arise.

After years as a practicing custody and divorce lawyer in Denver, I have arrived at the conclusion that the only way to head off holiday trouble at the pass, and to curtail the anger that wells in the hearts of litigants over the subject, is specificity. Most holiday "emergencies" arise because of either vague orders. There are times when a case is filed close enough to the holiday season that there has not yet been a chance to get before a judge. In those instances, the key is for both sides to get an agreement worked out, knowing that the court will not hear the issue before the holiday season passes.

A cardinal rule to follow is making sure that language to the effect of, "holiday parenting time shall supersede regular and vacation time," gets into every visitation order. I have seen instances in which one party will believe he or she can take a vacation with the kids during the other parent's holiday, for instances the 4th of July. The language proposed above prevents that. In essence, if it is your holiday, you get that time, regardless of whether it falls during your regular visitation or the other parties. In the last couple of years, I have seen a few foolish attorneys suggest that there should be built in make-up time when a parent loses time due to the other taking his or her holiday. This can only lead to brain damage. The most user friendly way to look at this is from the perspective of the old addage, "what comes around goes around." You may lose a day due to your ex having Easter with the kids. Invariably, your ex will also lose time when you get a holiday. It balances out.

Holidays are generally rotated or alternated. If one parent gets Christmas in 2011, it stands to reason that the other will get it in 2012. With most holiday visitation schedules, the way things get balanced is to apportion holdiays on an even year/odd year basis. I have seen people try to map out the next 18 years, picking specific years. This generally leads to disaster. To truly keep things fair, it is wise for people to set a schedule such that the few most important holidays are balanced more or less equally in any given year.

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November 1, 2011

MODIFICATION OF YOUR COLORADO CHILD SUPPORT ORDERS

In a Colorado, or Denver area divorce, custody, or child support case, child support runs until the youngest child turns 19, barring extraordinary circumstances. While wrapping up a divorce case the other day, my client inquired as to whether he would need our services anymore. I explained to him that he might. In turn, he asked, "why?" I explained the fact that child support runs until 19, and with a young child, there was an extremely likely chance that either side would seek a modification of child support at some point over the years. Many people are initially of the perception that once orders are entered, the case is done and that's-that. On the contrary, we know that final orders, particularly when there are young children involved, are just the beginning. In most cases we see at Plog & Stein, it is not uncommon to see at least one, or more, modifications of child support over the years.

Child support modifications are governed by Colorado Revised Statute 14-10-122. The general standard for modifying child support, as set forth in statute is that child support can be changed, "only upon a showing of changed circumstances that are substantial and continuing...." Statute clarifies these vague terms by indicating that a "substantial and continuing" change is one in which the monthly child support amount goes up or down by 10 percent or more. For example, if the monthly child support amount was $500, and the new amount, after all relevant factors are plugged into the calculation, is $551, a modification can be had. However, if the new factors lead to a new figure of $549, there will be no modification. Court's must strictly apply this standard, barring special (and rare) grounds for deviation from the child support guidelines.

As indicated in prior postings, Colorado child support is essentially determined by a few various factors, those being primarily income, number of children, number of overnight visits per year for the non-custodial parent, day care, and health insurance. When a modification is sought, it is generally going to be based on a change in one or more of these factors, which leads to the requisite 10 percent or more change in the prior monthly amount. Over time, people change jobs. People lose jobs. Wages go up. People finish school and obtain new, higher paying careers. Parenting time changes. One child out of three may turn 19, thereby no longer being a factor in the child support equation. Kids grow older and no longer need that $500 to $1000 per month in day care, or after school care, they needed when they were young. These are the general types of changes which give rise to a request for modification of child support.

Conversely, there are common changes which people wrongly presume may lead to a modification. Those can include remarriage, of either party. People often mistakenly believe that if they just quit their job, child support will automatically be modified. Another common misperception is that just because a party has another child in a new relationship, he or she should be automatically entitled to a modification of his or her support. It is important for persons seeking a modification to thoroughly assess the situation to make sure a valid reason for such exists.

Pursuant to C.R.S. 14-10-122, a modification of child support will generally be retroactive back to the date of the filing of a motion. Therefore, presuming there are no impediments to filing, such as having to mediate first, one should file his or her motion when he or she is sure that grounds to do so exist. In most instances, a court will enter the modification back to the date of filing. For example, the prior monthly amount is $500 per month and the motion is filed April. The new amount established at a hearing in December is $300. Therefore, the payor potentially overpaid support to the tune of $200 per month for an 8 month period. In these instances, most courts will enter the new amount retroactively, and will order that the $1600 over payment be paid off in 1/24 installments, to be reduced from the new monthly child support payment. This retroactivity works both ways. There could have just as easily been an under payment for that 8 month period, thereby leading to an arrearage to be added on in 1/24 increments to the new monthly child support amount. Statute does give the court discretion to not apply the new amount retroactively, if it believes a financial "hardship" would exist by doing so. It is very rare for a court to invoke the "hardship" provision.

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October 18, 2011

HOW DEMEANOR, PERSONALITY, AND RELATIONSHIP BETWEEN ATTORNEYS CAN AFFECT YOUR COLORADO DIVORCE OR CUSTODY CASE

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With almost each new client call I get, whether for a Denver area divorce or custody case, one of the first questions I ask, presuming there is an existing case is, "who is the other attorney?" One might think this is a silly question that doesn't matter. To the contrary, it can make all the difference in the world. The whole tenor or tone of a family law case can be determined by who the opposing counsel is.

In conjunction with the demeanor of a case also comes cost. Potential clients often ask, "how much will the overall cost be?" I generally respond that the overall cost is largely dictated by how much of a fight there will be. One of the key factors can be the attorney on the side.

The law is presumably the law. Judges are, in essence, judges. However, most family law attorneys in Denver (meaning those who solely focus on family law), become attuned to how our judges will likely rule on various issues. When you get two, what I will call "reasonable," attorneys on a case, with the experience and insight into the specific court, cases can often be settled without much of a battle. The attorneys can generally assess the ins and outs of a case relatively easily. Once the finanical disclosures are exchanged, the division of property, alimony, and child support become fairly clear. There may still be minor skirmishes over issues, but in the end the case is generally resolved without a court hearing. This is because the attorneys more or less know the outcome. As such, we advise our clients accordingly, though we acknowledge and honor their rights to make the final decisions as to settlement or proceeding to litigation. In these instances, both time and money can be saved for the client. To clarify, a good settlement means settling to something that is as good, or better, than what the attorney believes is attainable through a hearing in front of the judge.

However, regardless of facts and outcomes in a divorce or custody case being readily apparent, there are cases in which the attorney dynamic can affect cost, the path the case takes, etc. Without naming any names, there are attorneys in the family law circle who have the reputation of making cases ugly. There are attorneys who will counsel or encourage their clients to battle over seemingly every issue, even those that are black and white. There are attorneys who will send a nasty letter or e-mail seemingly every day. There are attorneys who will do wasteful things like issue discovery or set depositions just as a matter of course. Some might chalk up these styles of practicing law to being "zealous advocate." In many instances, I chalk this up to being wasteful and dismissive of the notions of efficiency and client costs.

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September 26, 2011

Statutory Protections at the Start of Your Colorado Divorce Case

Over my years of practicing divorce, or family law, in Colorado, I have come to realize the fear that people generally feel at the start of a divorce. They are going into the unknown, whether they are filing the case or have just been served. They do not know what the future holds or what a court will do (beyond what friends and family have told them). Unfortunately, divorces do not generally start with people being happy with each other. One party is usually angry at the other, whether over finances, infidelity, emotional neglect, substance abuse, growing apart, or whatever other catalyst one might imagine causes a divorce.

In moments of anger and fear, people tend to make rash decisions, whether out of that anger or due to not-so-well-thought-out strategic planning. I have seen bank accounts drained, children taken, property sold, debt wracked up, and other spiteful acts committed around the initial time of a divorce being filed, whether just before or just after. As a movie buff, I am reminded of a saying from an old 1930's or 1940's series, "what evil lurks in the heart of men? Only the Shadow knows." Moving forward roughly 70 years, so does the Colorado legislature. As such, our state lawmakers enacted C.R.S. 14-10-107, which sets forth certain prohibitions on the financial or behavioral shenanigans many people might feel compelled to engage in around the time a divorce case begins. In essence, this statutory section offers protection for both parties related to money, property, and the children. It sets forth ground rules for going through the divorce case. Without such rules, anger and spite would rule the day and the Denver area divorce courts would be further backed up with the filing of emergency motions to rectify the initial spiteful or angry wrongs committed.

Pursuant to C.R.S. 14-10-107, there is an automatic temporary injunction which takes effect against the Petitioner upon filing a divorce, and against the Respondent, upon him or her being served. This injunction prohibits essentially 4 things while the divorce case is pending:

1. The transfering, encumbering, hiding, or disposing of marital property without a court order or consent of the other party. However, some of these behaviors are allowed when do in the "usual course of business" or for the necessities of life. In the event that property is disposed of, encumbered, etc. for business or necessity of life needs, notice must be given to the other side, as well as a full accounting.

2. The molesting or disturbing of the peace of the other party.

3. Removing the children from the State of Colorado without permission of the other party or an order of the court.

4. Cancelling, altering, or letting lapse any insurance policy, whether life, health, or property related.

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September 23, 2011

To Be or Not to Be? Income in a Colorado Child Support Case

As a divorce lawyer in Denver, one of the most common issues I see in child support battles, beyond whether someone is appropriately employed, relates to what does or does not constitute income for child support purposes. With this article, my hope is to clarify some things for my readers regarding the subject. To start, income for child support purposes is generally set forth in C.R.S. 14-10-115(5).

Subsection (5) sets forth a long list of what counts as income. I will dispense with reciting the whole list, but will set forth some of the more commonly misconstrued items, beyond what someone might earn from his or her paid job:

1. Bonuses: Bonuses do count as income. Most people with whom I speak who receive a bonus will either tell me, "it changes from year to year" or "they're ending bonuses next year...." Their hope is that the court will not include the bonus or that their words will lead me to say the bonus will not be counted as income. Comporting with my moral compass, I must be truthful. Bonuses will count in a Colorado child support case! With a fluctuating bonus, the court will generally average the last few years to arrive at a fair figure. However, if the trend has always been going up, a court will be more likely to just use the current figure. If your employer is truly ending the bonus structure, you better get a letter to that effect or be ready to have someone above you testify to that effect.

2. Rental income and rent (from a roommate): Statute specifically sets forth the notion that rent is income. If you have a roommate living in your home who pays you rent, that would count and be added to your monthly income. A court would find, and statute would support the notion, that this is money received which reduces your living expenses. Thus, it counts. The other situation we see regarding rent is one in which a party, whether in a divorce, custody, or child support case, has rental property or a prior home which they rent out. In these situations, I almost always hear that person state, "I just use the rent to pay the mortgage." If the rent truly just goes towards payment of mortgage and necessary expenses, C.R.S. 14-10-115(5)(III)(A) and (B) would support the notion that income from your rent would really only be any profit you make from the rental property after deducting those expenses. Of course, you should be ready with documentation to show where the procedes received from the tenant are going. If you have rental property that has no morgage or other expenses, you should absolutely count on the monthly payments being included as income for child support purposes.

3. Pension and retirement income: Income you receive on a regular basis from a retirement plan will generally count towards your child support income. The court will not care whether you earned that pension before the child support case. The court will not care whether that pension has been counted or divided as property as part of a divorce case (your ex's portion would count as income, too). The court will not care whether the pension was accrued before the child was even born. If you are receiving pension income, that income will count towards your monthly child support income. Even if you also have a full, or part-time, job the pension income will be included added to your income.

4. Recurring gifts: Let's say rich Uncle Wilbur gives you $10K each January as a gift. Though that money would generally be yours in divorce battle over property, the court could count Uncle Wilbur's yearly gift as income for child support calculation purposes. Using another scenario I have seen, let's say your parents give you $3000 each month to live, and it's not titled a loan. If this goes on long enough, a court may include this as income to you. Let's say instead of giving you money directly, mom and dad pay your rent, car payment, etc. on a monthly basis. A court may count that, too. I have even seen one situation in which mom and dad lived out of state, but owned a house here. They allowed the party to reside in that house and use their car, rent and payment free. The court counted the approximate value of those things as income.

5. Certain monthly business expense deductions allowed by the IRS: Income from a business is counted as child support income. When dealing with self employed parties, we Colorado divorce and custody lawyers, will almost always be forced to go through prior tax returns, profit and loss statements, etc. to assess the revenue of the business and what are legitimate expenses reducing income. The end goal is to determine whether the individual income reported by the business owner on his or her personal taxes matches up with the income of the business. It is also to determine if there is other personal income that could be used for child support. There are certain items that might be allowable business deductions or expenses for IRS purposes that might, but will not help reduce your child support income. Home office deductions are an item I will generally fight to get included as income. Car payments made by your business may be personal income. Health insurance payments paid by a business may be personal income. Even depreciation on business property, at least "accelerated depreciation", may be counted as business income for child support purposes. Just because the IRS says it's not income, does not mean Colorado child support law agrees. Additionally, people often think they can just pay personal expenses out of a business account and that those proceeds won't count as income. They are wrong, from and IRS and child support standpoint. A good child support attorney will figure it out. We have our ways.

I will saved the "...not to be" analysis of child support income for another posting. Just as I see Denver child support clients' jaws drop when I tell them something is income, I also see jaws drop when people are told something is not. I will elaborate another day. For now, take with you the understanding that each court is different and may interpret the niceties of determining income differently. Please also take to heart that income for child support purposes is potentially more than you think.

September 15, 2011

Witness Deadlines and Your Colorado Divorce or Custody Hearing

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In Colorado, most procedural issues regarding litigation of a divorce or custody case are set forth in Colorado Rules of Civil Procedure Rule 16.2. This rule, in essence, sets forth procedure from start to finish of a family law case. Though we see most cases settle without ever having to go to a final, witnesses-on-the-stand, hearing, not all cases settle. As such, once a hearing is set, we make sure not only to mark the hearing date on our calendar(s), but to also mark down any relevant deadlines.

Sadly, not all litigants in a divorce or custody case are aware of the deadlines. Not all attorneys adhere to them either, at their own risk and to the risk of their clients. Specifically, I am referring to various deadlines related to the disclosure of witnesses or compelling a witness to testify. As family law attorneys in Denver, we know the importance of these deadlines. Missing your witness deadline may leave you precluded from having witnesses you may want to testify able to do so. Failing to get a subpoena issued in time may leave you unable to force testimony from unwilling third party.

Pursuant to C.R.C.P. 16.2(e)(3), lay and expert witnesses whom a party intends to call for a final hearing must be disclosed, in writing, to the other side no later than 60 days prior to that hearing. This disclosure includes the potential witness' name, address, phone number, and a sentence or two concerning the general content of their testimony. For expert witnesses, a copy of any report or written opinion and their resume or cirriculum vitae (fancy term for a more detailed professional resume) must also be provided. Additionally, a list of publications in the last 10 years and cases testified in over the last 4 years must also be provided. Failure to provide this information may, again, preclude your witness from testifying.

It is not uncommon for there to be joint experts in Colorado divorce or custody cases, such as Child and Family Investigators or home appraisers. As such, the strict requirements may not always be applied. However, one should always assume they will be held to the rules. It is not uncommon for people to call us less than 60 days prior to their hearings seeking our services. It is also not uncommon to see people who have not used an attorney up to that point having blown the 60 day deadline. As the Denver metropolitan area has many different courts, and many different judges, the rules are not applied the same in each court. Some judges may be more relaxed about witness disclosures, or suggest to the other side that if they object based on a blown deadline, the court will just re-set the matter for a later date. Other judges will hold a party's feet to the proverbial fire and preclude improperly declared witnesses from testifying. This can potentially make or break a case.

Parties to a Denver divorce or custody case must keep in mind that the rule applies to both lay and expert witnesses. They must also keep in mind that a lay witness, such as a neighbor, teacher, or friend, may have something just as valuable to say as an expert. Contrary to popular belief, you cannot just get an affidavit or written statement from a person and provide it to to the court. That would be inadmissible hearsay and would not come in.

Another factor to keep in mind is that it is better to be over inclusive than under inclusive when declaring your witnesses. Just because you have declared a witness does not mean you have to use that person. Whom you ultimately call to testify is your choice. Being over inclusive keeps your options open. You or your attorney can then whittle down the list as you get closer to hearing.

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September 5, 2011

Options in a Colorado custody case when you have joint decision making and can't agree

In Colorado custody law, what used to be called "custody" is now technically called "parental responsibility." The right to make major decisions for the children used to be called "legal custody." Legal custody is now generally referred to in Colorado family law circles as "parental responsibility" as relates to the making of major decisons for the children. As with legal custody, there are two options, "sole" or "joint" parental responsibility. Absent domestic violence, mental illness, substance abuse, or distance issues that make joint parental responsibility as to the making of major decisions impractical or improper, it is 90+ percent likely that parties will be awarded joint decision making authority by the court in a divorce or custody case.

Though most people are awarded joint custody, it is not uncommon for our attorneys to see people with great misconceptions as to what the term or legal concept actually means. Joint decision making entails the notion that the two parents have the ability to make major decisions jointly, and in the best interest of the children. Major decisions are things such as school choice, selection of medical providers, whether a child should have braces, and any of the other larger parental decisions that may need to be made. It does not include day to day things like whether the kids should have a hair cut, how a child should be disciplined, what they should eat, or lesser things like that. Those lesser decisions are left to which ever parent is exercising his or her visitation at the time.

Though our legislature envisioned two rational parents jointly agreeing on major issues, such is not always the case. Over the years, we have seen arguments between parties over school choice, whether braces are needed, counseling for the kids, and an array of other issues. With joint decision making, the parties have equal veto power. As such, the question becomes what are people to do when decisions need to be made, but they cannot agree? If one party goes ahead with his or her desired course of action unilaterally, he or she becomes open to being hauled into court for contempt of court proceedings (which can potentially include 180 days in jail). Thus, I strongly advise against taking the unilateral approach.

One might think that if there is a disagreement as to a major decision, the court will ultimately need to decide. There are two problems with this line of thinking. Firstly, major decisions regarding children sometimes need to be made in an expeditious fashion. In some courts, it can take months, or more, from when a motion is filed to when a hearing on the motion actually takes place (largely due to too many cases and too few judges to hear them). The second problem is that C.R.S. 14-10-123, 124, and/or 131 speak of parents having decision making authority, not the courts. Therefore, technically, a court cannot make the decision as to the issue on which the parties disagree. In theory, the court could modify decision making in whole, or in part, to end the stalemate. However, to modify decision making pursuant to C.R.S. 14-10-131, there must generally be a finding of physical or emotional danger to the child. This is a high standard and a threshhold not likely to be met in most situations. If one party doesn't cave, then both have a problem.

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August 28, 2011

Are You Common Law Married Under Colorado Law and Do You Need A Divorce?

The Denver divorce lawyers at Plog & Stein, P.C. receive multiple calls or inquiries from people related to divorce and custody. One of the fairly common questions people might ask about relates to common law marriage. There are many misconceptions among the general public as to what constitutes a common law marriage and what does not.

Colorado is one of a number of states, which can be counted on two hands, that acknowledges common law marriage. There are certain standards or criteria for determining whether a common law marriage exists. Ultimately, whether a common law marriage exists may be a question of fact to be determined by a Colorado family law judge. For parties to be common law married in Colorado, they must meet the following conditions:

1. Parties must both be over 18 years of age (see C.R.S. 14-2-109.5).
2. The parties must have agreed that they are husband and wife.
3. The parties must co-habitate as husband and wife after agreeing among themselves that they are husband and wife.
4. The parties must hold themselves out to the public at large as husband and wife.

The case most commonly referred to by the Colorado family law community for this standard is People v. Lucero, 747 P.2d 660 (Colo. 1987). Though this case did not relate to a divorce, it set forth the standards most often referred to. When people ask whether they are common law married, they are usually basing their inquiry on other erroneous factors, or one or two of those listed above.

You are not common law married just because you:

1. Live with a person for a certain period of time (people often presume 6 months or more).
2. Have a joint bank account or other joint property together.
3. Live together with the intent of ultimately marrying.
4. File income taxes together.

These factors may all be evidence of a common law marriage, but do not create such. In reality, people may believe they are common law married, but are not. Conversely, people may find themselves to be common law married without even knowing it. These things matter. I see situations in which people have been together for 15 years, bought a house together, had children, one stayed home and raised the children while the other worked and accrued hundreds of thousands of dollars in retirement, yet were never married.

As a Colorado divorce lawyer, I have also seen situations of great concern, in which people have never agreed they are married, never used each other's last names, never told friends and family they are husband and wife, yet have boxed themselves into a legal predicament. Some of the common ways this can happen relate to taxes or health insurance. Co-habitating couples, like anyone else, are looking for ways to cut costs or to maximize finances. As a result, people sometimes file their taxes together as "married filing jointly." Beyond co-habitating, these people may not meet the other criteria set forth to create a common law marriage. Thus, the legal bind begins. In these situations, the parties may be forced to accept a common law marriage even if neither wants it. The problem lies in the fact that by filing taxes together when not common law married, the parties have potentially committed tax fraud. In such a situation, they would be hard pressed in a divorce proceeding to argue they are not common law married. By doing so, particularly "on the record," they are basically admitting the tax fraud. Some judges will even go so far as to be of the belief that they may have a duty to report that tax fraud to proper authorities.

Another common instance in which people may box themselves into a common law marriage relates to health insurance. In this day and age, some insurance companies will allow one person to claim his or her love interest via the signing of an "affidavit of common law marriage." As with the tax return situation, if the people do not truly intend to be married, they might be in a legal pickle, having potentially committed insurance fraud.

If both parties in the tax or insurance situations do not contest the issue of the common law marriage down the road, there may not be a problem. Regardless, why make your future messy? One might also find it problematic to learn years later, down the road and weeks before his or her wedding day, that he or she is actually married. Such a situation might leave you standing at the altar alone.

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August 14, 2011

DENVER DIVORCE: THE 3 COURT STAGES

As a divorce lawyer in Denver, I have seen various changes to the divorce process over the years. In the olden days (late 1990's to early 2000's), the divorce process consisted of essentially two phases: temporary orders and permanent orders. In the early part of the last decade, the Colorado legislature decided it would be more efficient to add a third stage, the initial status conference. The purpose of this conference was supposed to be an opportunity for the court to get a handle on each case, and perhaps assist in how it progresses, early on. This supposed to be efficient procedure has now lead to the third divorce stage or event, yet the process is no more efficient today than a decade ago. This posting will focus on the purpose and timing of each of the three stages:

1. INITIAL STATUS CONFERENCE: Pursuant to current Colorado statute, each new divorce, and custody, case is required to have an initial status conference with the court roughly 40 days from when the case is filed. The initial status conference is designed to be essentially an opportunity for the parties to inform the court of the issues, discuss how to deal with experts or other contested aspects of the case, and to assess potential time frames for future events. Statute also authorizes the entry of emergency orders at the initial status conference, such as orders regarding emergency support or visitation. Our Denver family law attorneys see the various courts throughout the metro area doing differing things. In Adams County and Douglas, the ISC is conducted with the family court facilitator, who is not a judge or magistrate. As such, orders will not be entered at the ISC. In Arapahoe County, the ISC will be heard by a Magistrate, who is a judge, or judge like figure, and who can enter orders. At the initial conference, beyond discussing progression of the case, either party can ask the court for a temporary orders hearing, which will be discussed below as stage 2. For the ISC, parties are generally required to have their financial disclosures completed and to have taken the mandatory one-time parenting class. For the ISC, attorneys should be prepared to discuss expert witness, most certainly whether a child and family investigator will be needed. The ISC can also be a time to discuss discovery issues or the filing of any motions, which cannot be done in most instances without permission from the court.

In many cases, particularly those in those in which temporary orders are not needed, the ISC can be wasteful of time and resources (attorney fees). Fortunately, if both parties are represented by attorneys, they can opt out of the initial conference through the filing of a "Stipulated Case Management Plan." This plan informs the court as to how the parties will proceed with the case, expert witnesses, etc. Many courts require you to show up for the ISC if you are wanting a temporary orders hearing. Therefore, you and your Denver divorce attorney should be certain you don't need that hearing prior to waiving the ISC.

2. TEMPORARY ORDERS: In any Colorado custody or divorce case, either party is allowed, pursuant to C.R.S. 14-10-108, to ask the court for temporary orders. Temporary orders are orders that govern from while the case is pending until final orders are entered. In most instances, the issues heard at a temporary orders hearing will relate to temporary visitation, temporary support, temporary payment of marital obligations, and sometimes temporary use of martial property, such as use of the marital home. Orders entered at this hearing are not supposed to prejudice either party for purposes of permanent orders, which is stage 3 below. Regardless, most Denver divorce and custody attorneys know that what visitation schedule or alimony amount that gets set a temporary orders can have an effect when it comes time for final orders to be decided. Therefore, temporary orders are important from both a present and future standpoint. In most jurisdictions, temporary orders are heard by a magistrate, not a judge. At temporary orders, the court cannot decide final custody or final division of property. Those issues are specifically for a judge to decide at permanent orders. As divorce and custody cases can take over a year in some jurisdiction, it is important to get temporary orders in place which will protect you and your children while the case lingers on. Temporary orders hearings will generally take place roughly 2 to 4 months from when the case is filed, depending on which jurisdiction the case is in.

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August 10, 2011

BACK TO SCHOOL: YOUR DENVER DIVORCE OR CUSTODY CASE

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August and September are upon us. That means the time of year when the children start, or go back, to school. As divorce and custody attorneys in Denver, we see various issues that arise regarding school. These issues can be educational, financial, or related to aspects of a visitation or custody battle. Below are some of the topics that our experienced family law attorneys deal with:

1. School information: In many divorce or custody situations, one parent is the primary custodian for both custody and school enrollment purposes. As such, the other parent may be seen as a secondary parent in the eyes of the school. The custodial parent should always remember to list the non-custodial parent as the secondary contact on any registration or information form. Denver family law lawyers jump at the chance to show a party is not interested in co-parenting. A common bit of information those attorneys might use are school contact forms. We see parties add new boyfriends or girlfriends, grandparents, the milk man, or just about anyone besides the other parent. When knee deep in a custody or visitaiton battle, you do not want the other attorney using your failure to list the other parent against you as evidence of your inability to find value with that parent. The custodial parent should also get into the habit of mailing or e-mailing report cards, important notices, calendar and event information, field trip notices, etc. to the non-custodial parent. Both parents should be informed, and you don't want to be accused of keeping the other parent in the dark on these issues.

For the non-custodial parent, you may have orders in place regarding the custodial parent providing you with school information. This is great, but you should not rely on such alone. As a Denver custody lawyer, I see many instances in which the non-custodial parent is not kept informed about school issues, or in which he or she finds out about a concert or field trip the day before. You, as the non-custodial parent, still have power and rights. Take it upon yourself to proactively make sure you are abreast of school issues, regarless of the other parent. Make sure the office has on record that you, too, are to be informed of any signficant academic, activity, or disciplinary issues. Be proactive with the teachers. Throughout the school year, there will be grade reports, notices of activities, information on projects, and other various informative documents sent home by the teacher. At the beginning of the year, ask the teacher to specifically make sure you are provided a duplicate of all things sent to the other parents home. Sometimes these notices are sent with the children. Sometimes children lose them or the other parent forgets to share. You could get into the habit of e-mailing the teacher each week as a back up to see what, if anything, of importance came home. You should also, on your own, make sure you keep abreast of parent teacher conferences. In some cases, the parties are so mad at each other they cannot even attend a parent-teacher conference together in a civil manner. Schools are aware of this. Most teachers will accommodate you with a second conference. Again, you have the power to be on top of your child's education without having to rely on your ex. Use it.

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