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.

Continue reading "BE READY TO TESTIFY IN YOUR DENVER DIVORCE OR CUSTODY CASE, Part 1 " »

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.

Continue reading "YOUR COLORADO CUSTODY CASE: HELPING YOUR ATTORNEY HELP YOU " »

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.

Continue reading "THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 1) " »

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

Continue reading "When Is The Right Time To File My Colorado Divorce? " »

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.

Continue reading "Pre-nuptial Agreements And Your Colorado Divorce " »

March 30, 2012

It's Tax Time Again: What You Can Claim In Your Denver Child Support Case

Year after year, Americans wait, some with joy, some with fear, for tax season. April 15 will soon be upon us. Do you know what you can claim and what you cannot? People with Denver area child support cases, whether just child support or stemming from a divorce or custody case, have various rights that may or may not be affected in terms of what they can claim as tax deductions or exemptions, and related to what benefits they might receive. Federal law and the I.R.S. set forth certain rules and regulations that govern in child support or divorce cases regarding exemptions, deductions, and certain status designations regarding your children. Each parent going through a child support case, or other family law case involving children, should know their rights.

I will preface this posting by indicating I am a Denver divorce lawyer, not a tax attorney. My standard line to most people coming through our doors is that I will generally not give tax advice, beyond the most basic bits of information, such as the fact that periodic payments of alimony can be deducted by the payor and are considered income to the recipient. In keeping with my standard practice to not give tax advice, this posting should not be viewed as tax advice. Such is left for accountants and tax attorneys. It should be viewed as information people in a child support or divorce situation may need to further investigate as they finish up their returns.

The most common area in which we Denver child support attorneys deal with taxes relates to the right to claim the children for income tax dependency exemption purposes. Pursuant to statute, absent an agreement between the parties, the court is required to allocate the right to claim the children for income tax dependency exemption purposes in proportion to the parties' contributions to the cost of raising a child. In practice, this translastes to allocating the exemptions proportionate to income. If husband makes $50,000 per year and wife makes $100,000 per year, wife should be able to claim the child 2 out of 3 years. Though it it likely too late to get an order from the court regarding this allocation for tax year 2011, it's not to late to file a motion to get the exemptions allocated for 2012 and future years.

One caveat to this rule set forth in C.R.S. 14-10-115(12) is that the child support payor must have paid all support due and owing in the year to be claimed, or he or she will lose the right to claim any allocated exemptions for that year. I try to inform all clients of this fact when discussing the right to claim the dependency exemption whether payor or payee. Both need to know.

For the non-custodial parent to effectuate the claiming of the exemption, he or she will need the other parent to fill out IRS Form 8332, which lets the IRS know that the custodial parent is giving up the right for the specific year in question. With the Form 8332, other tax benefits can also be claimed, such as the Child Tax Credit, which can potentailly lead to up to a $1000 windfall, depending upon one's income.

So as to avoid confusion, and to make sure you are able to claim that which the law allows, it is important to make sure your child support orders or agreements contain appropriate language. If this is not done when final orders are initially entered, statute and case law allow for the establishment of order regarding the exemptions after the fact, or certainly with each modificaton of actual child support.

In many of the Colorado child support cases we see, there are other issues beyond the claiming of the dependency exemption which may arise, such as claiming "head of household" status or any day care paid out over the year. Pursuant to IRS code, these designations or deductions can only be claimed by the custodial parent.

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March 10, 2012

Protecting Your Identity And Information In Your Colorado Divorce

After a trying week dealing with the fact that an extremely close family member had been the victim of identity theft and bank fraud, I got to thinking about the potential for vulnerabiltiy of parties to a Denver divorce in terms of personal information, whether financial or otherwise. First, my story. While out of town in late February, a family member received an e-mail from a major national bank regarding her account and a potential security breach leading stoppage of her ability to access her accounts on-line. The e-mail came to her smart phone. Of course, all that needed to be done was simply clicking on a tab and on-line access would be restored. The e-mail had a flawless bank logo on the top. The tab looked real, unlike the code links we all get from time to time on spam e-mails. Of course she clicked on the tab.

Fast forwarding to this week, a call from the bank determined that multiple personal savings and checking accounts had been compromised. Several thousand dollars had been stolen. The theft started out with someone making transactions under $1, to test out the information gained through the scam e-mail and accessing the account information contained on the smart phone. In the end, multiple account were closed, new security measures were put into place, etc. This included putting a stop on all transaction coming from Western Union, the entity which ultimately accepted the scam transactions from her account. I was able to ultimately trace the theft to some pathetic cyber criminal in Lithuania named Ebi Crisofaris @ zebra.it. Had more money been taken, I just might consider hopping on a plane to Lithuania. Instead, I do the civilized thing a divorce attorney in Denver should do. I write.

Back to divorce and security of your personal information. In most divorces, the parties have been linked for years. They have shared all aspects of their lives, including social security numbers, bank information, passwords, etc. The sharing is wonderful when people are together and in love. However, with any divorce, there is potential for acrimony, anger, and the risk of a soon-to-be ex-spouse behaving badly. With any divorce, a person's personal information can be at risk.

Perhaps the most important numerical piece of data each of us holds is our social security number. As most spouses know each other's, there is little one can do to conceal their social security number. I have seen instances in which one party seeks to open up bank or credit accounts using the other's social security number, whether before or after the case is filed. This is, or should be, criminal, as your credit is yours and the seeking of such is a right germane to you. If you determine your soon-to-be ex, or ex, has gained credit or is trying to do so without your approval, you should contact local law enforcement. In this day and age, one need only get onto the internet, armed with a birthdate and social security number, to gain a credit card. No signature, no picture ID.

Fortunately, the Colorado legislature and judiciary have gotten wise to the need to protect social security numbers. In the olden days, one might be required to report a social security number, or their kids', on a divorce petition, a sworn financial statement, or a support order. Fortunately, this has changed. Now one need only provide social security numbers on one document, a "case information sheet," which gets filed with the initial petition. Social security numbers are also still put into wage garnishments for support. Divorce documents are potentially public record, some being accessible on the internet. The less instances of your social security number being made public, the better.

Beyond the filing of court pleadings, another area in which your Denver divorce lawyer might ask you to provide sensitive information relates to financial disclosures. As part of your divorce case, you will be required to provide a sworn financial statement, tax returns and W-2's, bank statements, credit card statements, and more. There is really nothing you can do to protect information related to joint bank or credit card accounts, or joint tax returns. The other party already had this information. However, you certainly have the ability to protect new accounts. You also have the ability to protect information related to new spouses, such as their social security number listed on a joint tax return, let's say in a post-decree child support modification setting. Additionally, you may find yourself in a custody situation in which the other parent has never had your personal identification or financial information. Again, there are things you can do initially to potentially limit what they get.


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February 28, 2012

What County Should My Case Be Heard In? Venue In Your Colorado Divorce Or Custody Case

While undertaking a new divorce case today with interstate ramifications, I got to thinking about the fact that people, including attorneys, often have questions or problems with the issue of where a divorce or custody case will be heard. By this, I mean that, at times, there is confusion as to which is the proper county for a case to be filed in. I am not confused and hope to enlighten those on the subject who are. There are various rules set forth in Colorado Rules of Civil Procedure, or statute, regarding where a case shall be heard, including, again, the specific county.

When undertaking the filing of a new divorce or custody case, one of the first questions asked by the Denver divorce attorneys at Plog & Stein, P.C., is "what county does the other party reside in?" We ask this question for purposes of ensuring compliance with Colorado Rules of Civil Procedure Rule 98, which deals with the issue of "venue." Pursuant to Rule 98(c), "..., an action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, or the county where the plaintiff resides when service is made on the defendant in such county;..."

The language set forth in C.R.C.P. Rule 98 is plain and simple, and should be easy to follow. If husband and wife reside together in Arapahoe County at the time a divorce is filed, the divorce shall properly be filed in Arapahoe County. If the parties originally resided in Arapahoe County and have separated, with wife now residing in Denver County, the case should properly be filed by husband in Denver, unless wife can be served in Arapahoe. Sometimes this can be accomplished. Some times it cannot. The common presumption that the parties resided together in a specific county automatically makes that county the proper place for filing the divorce is wrong.

Rule 98 is applicable in Denver area custody cases as well. People often wrongly assume that venue is proper in the county in which the child is located. Again, this is a false assumption. Though it certainly might be more convenient to have a Denver area custody case heard in your specific county, you must look to where the other parent resides. Admittedly, when there are childrern, there is a greater chance for the person in one county being able to serve the other parent in that county when visitation exchanges will occur there. At the same time, one has to weigh the potential damage to the children of seeing the other parent served, or their angry reaction to such.

An exception to the general rule flows from the statutory section set forth in C.R.S. Title 19, Article 4, regarding paternity cases. In addition to the establishment of parentage, paternity cases will generally entail issues regarding custody and child support. Pursuant to C.R.S. 19-4-109, a paternity case may be brought in either the county in which the prosepctive father resides, or in the county in which the child at issue resides. Thus, there are exceptions in some cases which family law attorneys in Denver should be aware of.

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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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