Denver Divorce Attorney Blog

From the time I was a young child, perhaps due to having sisters, I was always told, "Boys don't hit girls." Sadly, over the years I have spent as a Denver family law attorney, I have come to learn that in fact, sometimes they do. Domestic violence is an unfortunate fact that comes into play in some divorce or custody cases. Whether in such a case, or in a restraining order setting, there can be lasting legal ramifications for both sides.

Domestic violence, or acts likenable to such, can be verbal or physical. Some Denver area courts find that even a systematic pattern of one person controlling the other to be domestic violence.

Colorado Statute, specificially, C.R.S. 14-10-124 (1.5)(b)(V) indicates one of the factors in a custody determination is domestic violence. Specifically, this section states, "Whether one of the parties has been a perpetrator of domestic violence, which factor shall be supported by a preponderance of the evidence. If the courts makes a finding of fact that one of the parties has been a perpetrator of domestic violence, then it shall not be in the best interests of the child to allocate mutual decision-making responsibility over the objection of the other party or the legal representative of the child unless the court finds that the parties are able to make shared decisions about their child without physical confrontation and in a place and manner that is not a danger to the abused party or the child."

What does this mean? In Colorado, the term "custody" is no longer used. Rather, in any divorce or custody case, the term is now called "parental responsibility." Custody used to be a two faceted term. "Physical custody" related to the party with whom the child resided a majority of the time. "Legal custody" related to the making of major decisions regarding the child, such as schools, doctors, medical care, etc. The term "parental responsibility," though containing all aspects of what was once "custody," including visitation, is now generally used by Colorado family law attorneys to mean decision making for the child.

Though most Colorado or Denver area courts generally favor joint decision making, domestic violence can affect such a determination. As a general rule of thumb, when one party has committed domestic violence against the other, our firm will often advise the victim that "sole" decision making to them is appropriate. This is because of the C.R.S. 14-10-124 presumption, which is rebuttable, that joint decision making is not appropriate due to the domestic violence.

In this day and age of e-mail or text communication, courts can certainly fashion a plan for joint decision making which is carried out electronically, thereby keeping the parties from engaging in actual in-person or phone communication. At the same time, courts take domestic violence seriously, and there is a reasonably good chance that the perpetrator will end up without any power to make major decisions regarding his or her child. In light of statute, victims should know their rights related to this topic and those who commit domestic violence should know the legal ramifications that will flow into any custody case or divorce with children.

From time to time we read about celebrities who engage in domestic violence, such as the recent charges against actor, Mel Gibson. According to a recent Today Show story, Mr. Gibson has pled "no contest" to charges that he battered his former girlfriend. This may likely have lasting ramifications on his also pending custody case. Though California is not Colorado, were his custody case here, Mr. Gibson might find himself divested of decision making authority.

Decision making authority does not necessarily equate to visitation, called "parenting time" in Colorado family law circles. Domestic violence can also affect parenting time as well, particularly if the perpetrator cannot engage in a safe fashion at parenting time exchanges or if a court or experts determine that the same anger or behavior will be used on the child.

There are also instances in which one person commits domestic violence with a new partner, after his or her divorce or custody case is completed. This can have an effect on that case, particularly if the attack on the new partner occurs during parenting time.

Though I could write a million more pages I will stop. The point is that domestic violence is a horrible syndrome we as Denver area attorneys see. People in custody or divorce cases should know their rights or the ramifications of their actions. People should stop and think before acting. People should be protected, and the law can provide such in custody cases.

What is Child Support? As a Denver area divorce/custody attorney, allow me to answer that question. Child Support is the statutorily determined amount of money a person may pay for the support of his or her child. The amount is determined based on a number of factors, which are plugged into a formula stemming from Colorado Revised Statutes. Child Support is generally calculated using this statutory formula. The general information that goes into a Child Support calculation is: a) income of each party, b) number of children, c) number of overnights the non-custodial parent has if that number is more than 93 overnights per year, d) monthly health insurance cost for the child(ren), and e) monthly day care cost, if applicable.

The above stated five factors are all plugged into the formula (attorneys use special software, but there are also free software tools for people to use on the internet) and a number is spit out. In most instances, the court or judge will follow the C.R.S.14-10-115 statutory guidelines. A judge might deviate from guideline amounts in odd circumstances or if the parties agree to such. We will write more about Child Support in upcoming postings. For now, I will state some frequently asked questions, followed by "yes" or "no" answers:

1. Can I just quit my job to avoid paying child support? No. In such an instance, the court can use your income from the job you quit for calculation purposes.

2. Can I ask for an accounting of how my ex spends the money? No. Courts are not going to allow or require this and presume child support paid goes into the recipient's general financial fund, to be used as deemed appropriate.

3. My ex has a BMW and a million dollar house, can I get more child support? No. Non-income producing assets have no bearing on child support.

Continue reading "Colorado Child Support 101 " »

There is an old saying, "Silence is golden." There is also a line from the Godfather , "Santino, never let anyone outside the family know what you're thinking." I am probably quoting the line wrong, but often quote it to my clients. As a Denver area divorce attorney and a great fan of gangster movies, I often advise my clients to act like gangsters or Goodfellas in terms of being very cautious about what they say and trusting only those closest to them with their thoughts. Though this may sound a little paranoid, it is great advice for people going through a divorce or custody case.

I was in court a couple of days ago on a restraining order matter, feeling ever so sneaky at the fact that I had multiple very damaging recordings of the other parent saying horrific things. I was able to use the recordings in a surprise manner in the courtroom and was on top of the world over the fact that I had likely made the case for my client. My client had recorded his or her significant other in a rant that came back to bite that person on the rear end. No more than half an hour later, the other attorney pulled out his own recording, perhaps more damaging to my client than ours to his. In both instances, both parties engaged in horrible verbal behavior, spewing out many of the proverbial "no-no's" in any battle regarding kids. In both instances, neither party knew he or she was being recorded by the other.

These days, people should always presume, whether in person or on the phone, that they may be being recorded. If a party to a family law case gets in the practice of watching what he or she says with every breath, ie: thinking like a gangster (or a lawyer), he or she may prevent tons of legal problems and heartache down the road.

Continue reading "Think Like a Mobster And Be Careful What You Say In Your Divorce Case " »

I have recently read in the last two issues of my wife's People Magazine about the travails of actress Halle Berry and her brewing custody case. As a Denver area divorce attorney, the multiple articles have peaked my interest and led me to ponder some of the allegations raised in them. An initial article raises the issue of Ms. Berry wanting to be able to take her child with her for a seemingly extended period of time to go to Europe, presumably to be with her current love interest, actor Olivier Martinez. This ties into a somewhat common question often asked by people related to relocating with their children outside of Colorado.

In family law or child custody terms, we attorneys call this a relocation case. Though people often think, "Well I'm the parent with residential custody, I should be able to move without issue," that is just not the case. Pursuant to Colorado statute, after final custody orders have entered, one must either gain the written permission of the other parent or an order of the court to move out of state with the children. We often tell people that this is the hardest battle to win.

The reality is that most courts and experts who investigate cases are generally philosophically opposed to one parent relocating and do not find such to be in a child's best interest. The primary concern is obviously the effect the move will have on the relationship between the child and the parent left behind. The standards for moving prior to the entry of a divorce decree or final custody order are easier than after the decree or final order has entered. Were Ms. Berry in Colorado, she might find herself in a tough spot trying to gain a court order seeking to relocate her child. However, the difference between Ms. Berry's case and yours is that she may be able to present a plausible solution to the court due to her Hollywood income making exhorbinant travel costs a non-issue. As most of us don't have that kind of money, our battles may be less costly, but more difficult. Nonetheless, the issues are the same whether Hollywood royalty or not.

The February 14, 2011 issue of People Magazine raises another interesting issue. Specifically, the article seems to allude to the father of Ms. Berry's child being unfit to care for the child, in need of supervised visitation, etc. It is not surprising to see that celebrities engage in the same type of behavior as common people. It is fairly common for people to claim "child abuse," "neglect," substance abuse, or other issues to try to limit the time the other parent has with the child.

Continue reading "Celebrity Custody Cases Are Just Like Yours " »

There is an old, sophomoric saying, "It's better to know the judge than to know the law." The implications of this saying seem to suggest that somehow knowing a judge, perhaps on a personal or friendship level, paves the way for better results in the courtroom. As justice is "blind," this saying connotates potentially unethical outcomes based on familiarity with your judge. This is obviously wrong, and a judge would certainly need to recuse himself or herself if there was a relationship significant enough to give a whiff of potential impropriety.

The above stated being said, it is important for attorneys and litigants in a divorce or custody situation to have knowledge of the judges they will be in front of. In Colorado, family law cases are not heard by juries. There is one person deciding how to deal with the facts and circumstances of each case and rendering a ruling. One must keep in mind that judges are human. One must also keep in mind that being human, judges may have individual view points on certain issues, such as parenting time for fathers, a person's ability to work as relates to child support, or how a certain statutory section is interpreted. As an attorney, one must try to ascertain the realm of likely possibilities before each individual judge and understand what facts or arguments that judge is more likely than not to entertain or find important.

When your attorney says, "Well, I think this judge will rule this way on this issue," the attorney is speaking from experience, courtroom knowledge, or information passed down from other attorneys. The attorney gives this guidance with the goal of assisting you in making decisions about how to proceed in your case. The attorney should be speaking from the standpoint of having your best interest in mind. When someone in a divorce case situation believes his or her attorney is truly looking out for him or her, that person should take the attorney's advice to heart in terms of how to wade through the courtroom or litigation phase of the case, including whether to even proceed with hearing on a given day. We generally know the right move to make and are truly trying to help you. The point is that our experience and insights, coupled with familiarity regarding the courts we practice in helps you. That is our primary goal.

There is another old saying, "Knowledge is power." Use your attorney's knowledge to gain some power in a stressful and uncertain time.

Plog & Stein, P.C., an established Colorado family law firm since 1999, is proud to announce the creation of its blog with this initial blog posting. Plog & Stein, P.C. practices family law exclusively, which includes Divorce, Custody, Child Support, Alimony, Restraining Orders, Visitation, Modifications, and more. As we get up to speed with blogging, we will be providing informative and interesting information regarding divorce, custody, our courts and our law firm. Honest and accurate information regarding Colorado family law issues will be our goal with this blog. We look forward to providing more really soon.

Stephen J. Plog
PLOG & STEIN, P.C.