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.

Continue reading "Are You Common Law Married Under Colorado Law and Do You Need A Divorce? " »

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.

Continue reading "DENVER DIVORCE: THE 3 COURT STAGES " »

August 10, 2011

BACK TO SCHOOL: YOUR DENVER DIVORCE OR CUSTODY CASE

1342345_a_modern_school.jpg
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.

Continue reading "BACK TO SCHOOL: YOUR DENVER DIVORCE OR CUSTODY CASE " »

August 6, 2011

DIVORCE IN DENVER: DIVIDING RETIREMENT PLANS

The law firm of Plog & Stein, P.C. practices solely family law in the Denver, Colorado area. As a divorce attorney in Denver, I handle all aspects of such cases, including the division of marital property. Though some have been depleted, or gone up and down and up and down over the last 3 years, many people still have retirement accounts that will need to be divided as part of the divorce process. This posting will focus on the division of three types of retirement plans: IRA's, 401K's, and pensions.

Though the Denver divorce lawyers at Plog & Stein do not give tax advice, we do know a little bit about the subject as relates to divorce. Pursuant to the IRS tax code, transfers of property indicent to a divorce are generally not considered a taxable event. However, there are certain procedures that generally go along with the division of the above stated retirement accounts that are designed to ensure that the division does not become taxable.

IRA's, or individual retirement accounts, are retirement accounts given certain tax status depending upon when funds are pulled out. If funds are pulled out before a certain retirement age, there may be tax consequences and penalties. In a divorce case, the marital portion of an IRA will need to be divided. If the plan holder just pulls out funds to pay his or her spouse out, he or she will be taxed and potentially penalized for the withdrawal. As such, the proper way for an IRA to be divided as part of a divorce is for the recipient to have the funds transferred or rolled over into another IRA or similar qualifying account set up for him or her. In this instance, the original plan holder is not taxed. Once the recipient receives his or her funds, he or she is free to do with them as he or she choose. If the recipient elects to cash out his or her funds, then a tax consequence and potential penalty may ensue.

401K's are another type of retirement account often owned by parties to a divorce. A 401K is what is technically called a "defined contribution plan." 401K's are similar to IRA's in that they are a lump sum account, with a cognizable value. As with IRA's, when dividing up a 401K as part of a divorce, funds cannot just be withdrawn to pay the other spouse. Rather, 401K's are generally divided through what is called a Qualified Domestic Relations Order, or QDRO. A QDRO is a specific order, ultimately signed off on by the court, instructing the plan or plan administrator to divide the 401K in a specific manner. Most plans have specific language that is required under the terms of the plan. The division of the 401K through a QDRO prevents the original plan holder from incurring tax or penalty consequences, which can be up to 40% of the withdrawal. The recipient of funds through the QDRO transfer can then elect to have his or her share put into a similar type of account or to cash them out via the transfer. Cashing out will lead to the tax/penalty consequence for the recipient on his or her share.

Most Denver family law attorneys dealing with property division do not actually draft QDRO's. Why? Because they are very technicality laden and, frankly, most of us don't know how. As such, in most cases, the actual drafting if farmed out to an expert QDRO drafter, whether an attorney or an accountant. The cost of the QDRO can range from roughly $400 to $800 depending on who is used, and is generally going to be split equally between the parties.

Continue reading "DIVORCE IN DENVER: DIVIDING RETIREMENT PLANS " »

August 2, 2011

HOW MENTAL HEALTH ISSUES CAN AFFECT YOUR COLORADO CUSTODY CASE

As Denver family law attorneys, the lawyers at Plog & Stein, P.C. deal with all types of domestic relations cases, including custody matters. When dealing with these cases, we hear a wide array of allegations raised by one party concerning the other. This can include allegations regarding past criminal acts, drug use, domestic violence, and more. An issue often raised relates to mental health.

Just as ADHD became the diagnosis dejure over the last couple of decades related children and learning disabilites, our attorneys would be rich if they got a dollar for every time one party or the mentioned the terms "bi-polar" or "Prozac." Prior to speaking with an attorney, many people engaged in a custody battle presume that the other party having some sort of mental health diagnosis is going to be a slam dunk when it comes to litigating custody or vistiation. Generally, they are wrong.

C.R.S. 14-10-124 sets forth certain criteria related to determining parental responsibility (custody). One of those factors is the mental health of all individuals involved. This does not mean that a court is going to automatically find a mental health issue, such as bi-polar disorder, to be a block to someone having custody or visitation. Most custody lawyers know that the courts are really looking at how the specific mental health issue is being dealt with.

One must keep in mind that there are a wide array of mental health issues we see in custody cases. We have seen cases in which bi-polar disorder is so severe that unsupervised visitation is just not safe. We have seen cases in which people imagine they are being followed or that there are sinister and other-wordly apparitions in their homes. We have heard stories of people licking and yelling at televisions. In all of these instances, there was one common factor. The diagnosed or undiagnosed mental health issue was not being treated.

Assuming someone is seeking treatment for his or her mental health condition, including taking prescribed medications, and assuming the treatment and meds are working, most courts are not going to find the mental health diagnosis to be an issue precluding custody or visitation. However, if that person is not following through with counseling or meds, particularly if there is a court order to do so, then the court may have concerns to the point of even restricting visitation or making it supervised until the problem is dealt with.

Continue reading "HOW MENTAL HEALTH ISSUES CAN AFFECT YOUR COLORADO CUSTODY CASE " »

July 28, 2011

Various Steps For Enforcing Orders Entered In Your Colorado Divorce Case

The Denver divorce attorneys at Plog & Stein, P.C. handle all aspects of Colorado divorce and custody cases for both men and women. This includes representation before final orders are entered and after. A significant problem faced by many people, particularly in these economic times, is what to do when the other party is not following the final orders that have been entered.

This posting will focus primarily on non-child support orders and remedies other than contempt of court. For those topics, see our main website or prior blog articles. There are other, non-child support, situations that people may find themselves in after there divorce is final. There are also other legal remedies beyond contempt of court. Contempt of court may be a great avenue to pursue when the other side is not complying with the court's order, but not always. Below are a few examples of other enforcement remedies available to our clients.

Scenario 1: Let's say the separation agreement sets forth specific visitation for the mother and the child lives primarily with father. Let's say father decides he is just going to stop letting mother see the child. Let's say the child is 5 and there are no danger issues presented by mother's environment. Rather than filing a contempt of court action, mother might consider filing a motion to enforce parenting time pursuant to statutory section C.R.S.14-10-129.5. With the filing of a motion to enforce parenting time, the court can grant various forms of relief, including make up parenting time, attorney fees, contempt like remedies, modification of existing orders, and even make the father who is not complying post a cash bond to be forfeited should there be future non-compliance. The nice thing about a motion to enforce parenting time is that it is supposed to be given priority placement on the court's docket, meaning the matter may be heard much sooner that a contempt of court action. Additionally, this type of a motion should generally entail one hearing, whereas a contempt entails both the advisement hearing and the actual evidentiary hearing. The burden of proof with a motion to enforce parenting time is also a preponderance of the evidence standard instead of the beyond a reasonable doubt standard that comes with a punitive contempt.

Scenario 2: Let's say the parties are divorced and the husband is supposed to sign over the title to the house to the wife. Let's say he won't do it. Again, though the wife could certainly file a contempt motion based on husband's non-compliance, she might consider instead filing a motion pursuant to Colorado Rules of Civil Procedure Rule 70. Pursuant to Rule 70, the court is vested with the power to enter an order authorizing the clerk or another third person to sign the document in place of the husband. That signature should be just as legally valid to the county clerk and recorder. If the house is in the actual district, the court may also enter an order of conveyance that should also suffice. To pursue Rule 70 relief, a motion must be filed outlining the court's order, the other party's non-compliance, and specifying the document that needs to be signed. Barring a valid response (which husband is likely to forego filing anyway), the wife should ultimately have that deed signed in a legally binding fashion. She should also ask her divorce lawyer about recovering attorney fees for husbands ridiculous behavior.

Continue reading "Various Steps For Enforcing Orders Entered In Your Colorado Divorce Case " »

July 22, 2011

DENVER CUSTODY: CFI'S AND PRE'S

940984_winner_takes_all_3.jpg

As a custody attorney in Denver, I have handled hundreds of child related divorce and custody cases over the years. Some have gone to trial, some have settled. One of the initial determinations a family law attorney in Colorado needs to make is whether a custody expert is needed for purposes of investigating and reporting to the court as to the best interest of the children.

The attorneys at Plog & Stein have almost always recommended the appointment of an expert in cases in which residential custody or visitation are a significant issue. Judges can't go out into the real world to sit with families, interview children, or get a true feel for what is going on with a family. Fortunately, statute makes provisions for the appointment of such experts to help get to the bottom of what kids needs. In many instances, a well written expert report can ultimately lead to settlement of a divorce or custody case, thereby saving the parties time and money.

Pursuant to C.R.S. 14-10-116.5, at the request of either party, or upon its own, the court can appoint what is called a Child and Family Investigator, referred to by us attorneys as a CFI. A CFI is a neutral third person, generally with a mental health background or an attorney with specific training, who investigates all contested aspects of a custody battle, including those in a divorce, and makes written recommendations which are tendered to the court. The CFI will meet with parties and the children, separately and together, as well as talk to outside sources, such as friends, family members, teachers, etc. in arriving at their conclusions. Courts are extremely likely to adopt the major aspects of a CFI's recommendations. As such, it is very important for your Denver family law attorney to be familiar with the array of CFI's in the metro area in terms of knowing what they are looking for, there viewpoints on mothers and fathers, etc. If a CFI is appointed, the outcome of your custody battle largely rests in his or her hands. As such, it is extremely important for your Denver family law attorney to inform you regarding the process, the things to say, and the do's and don'ts for dealing with this person. There is generally a charge for CFI's, unless the court authorizes the state to pay due to indigency of the parties.

Until April 2011, CFI investigations ranged in cost from $2000 to as much as $10,000 or more. Staring in April 2011, the Colorado Chief Justice issued new guidelines or rules indicating that CFI fees would generally be capped at $2000. This is great from a monetary standpoint. However, the fee cap, coupled with a loss of quasi-judicial immunity, led to a mass exodus of some very experienced and qualified CFI's from the ranks of those continuing to do investigations. There are still some good ones left. Qualified mental health CFI's used to be able to also do psychological testing (which in my opinion was rarely helpful), today they are not. If a person with money did not like the results of a CFI investigation, he or she might ask the court for the subsequent appointment of a Parental Responsibilities Evaluator, PRE to us lawyers.

As indicated above, PRE's used to be sought generally after one party or the other did not like a CFI report. With the April 2011 changes to the CFI rules, many of the mental health professionals formerly doing CFI work are now exlusively doing PRE evaluations. Parental Responsibility Evaluations are authorized pursuant to C.R.S. 14-10-127. Unless a court finds specifically that the PRE is sought for purposes of delay, it must grant a request for a PRE. A PRE is generally a heightened CFI investigation, which can include psychological testing. Attorneys are not doing PRE's, just mental health workers who are qualified. As they are more indepth than CFI investigations can now be, PRE's may be a good thing and the new way to go. The problem is that most evaluators want between $5000 to $10,000 down to get started. The average person cannot afford this.

Continue reading "DENVER CUSTODY: CFI'S AND PRE'S " »

July 15, 2011

DENVER DIVORCE AND FINANCIAL DISCLOSURES

Denver family law attorneys at Plog & Stein, P.C., are well abreast of the requirements set forth by Colorado statute and the courts related to divorce. One of the most important steps required by the courts relates to financial disclosures. Most people who have had a divorce or child support case will remember the tedious part of the case related to financial disclosures, yet they may not quite understand the importance of them.

Pursuant to Colorado Rules of Civil Procedure, Rule 16.2(e)(2), the basic list of documents to be provided in a divorce or child support case is:

1. Sworn Financial Statement, which is a comprehensive document, to be drafted by you or your attorney, setting forth income, assets, debts, and monthly expenses.
2. Last 3 months pay stubs.
3. Last 3 years personal and business (if applicable) tax returns.
4. Personal and busniess financial statements (I have yet to have a private person do a personal financial statement, thus this generally only applies to people with businesses).
5. Current bank statements.
6. Current debt statements, which includes credit card or other debt statements.
7. Current investment statements.
8. Current retirement account statements.
9. Documents related to real estate.
10. Documents regarding any insurance policies.
11. Documents regarding any vehicles.
12. Documents regarding day care expenses.
13. Documents regarding employment benefits.

These disclosures are generally required to be exchanged by the parties by the initial conference date in your divorce case or custody case, which generally will occur within 40 days of the case being filed, or as set forth by the court in a child support case. As you can see, the rules provide for complete financial disclosure. The purpose of this rule is to ensure that both sides have a clear picture of the other's financial situation for purposes of settlement, or so that each side and the court has a clear picture for purposes of a contested hearing.

As divorce deals with not only child support, but the division of assets and debts, it is important for there to be financial transparency between the parties. It is not uncommon for the attorneys at Plog & Stein to have cases in which one party or the other has been the one who has primarily dealt with the income, control of the accounts, payment of the bills, etc. Thus, the other party may have almost no knowledge as to expenses, income, or the holdings of the marital estate. In the olden days, it was often the wife who was in the dark. Today, husbands are sometimes the ones lacking financial knowledge. Our attorney often hear that the one who controls the finances is a controlling and secretive person related to such. Courts are keenly aware of the games that can go on with finances and the fact that one person may be completely in the dark. As such, most Denver area divorce courts will not sign off on the decree, thereby granting the divorce, until they know that both sides have completed their financial disclosures.

As relates to child support, whether in a child support case or a custody case, the disclosures also matter. Though assets are not being divided, attorneys may often need to see the assets and debts of the other party for purposes of trying to ascertain if there is hidden income or additional income that would also go into a child support calculation. The list of disclosures in these cases may not matter when both people have regular jobs. In such cases, the attorneys may really only need to see pay stubs, sworn financial statements, tax returns, day care documents, and proof of health insurance. The remainder of the list becomes important in instances in which one party is self employed, underemployed, or claims to be unemployed, yet magically seems to financially survive with no visible source of income. In essence, your family law attorney is trained to figure out monthly income for child support purposes from looking at assets and expenses as well. Thus, those things may matter.

Beyond courts holding up hearings or final orders, or getting upset with parties who fail to make their financial disclosures, there are broader ramifications of not doing financial disclosures properly and/or related to the timing of getting them done. We have seen both sides of divorce cases in which the parties arrive at an agreement, get that agreement put into writing, sign on the dotted line without having exchanged their financial disclosures, and submit the agreement to the court. Of course, this is done without attorneys involved. The problems arise when one party wakes up and says, "hey, wait a minute, this agreement is wholly unfair." If financial disclosures were not done properly and the court determines that the agreement is, in fact, unfair or unconscionable, the court can toss the entire agreement and make the parties start over again. I have litigated this issue as a Denver divorce lawyer from both sides of the coin. Parties to a divorce need to recognize that, technically, once the final divorce agreement (called Separation Agreement) is signed, the statutory presumption is that it is a binding contract as to property, debt, and potentially alimony. Therefore, never sign a final divorce agreement until you know you have full financial disclosures from the other side. Also, never presume you will bind the other side to that agreement if you did not make full financial disclosure. Great cost can arise from litigating these types of matters.

Finally, should one side fail to make full financial disclosure, the Rule also allows for a continuing jurisdiction on the part of the court for 5 years after the divorce decree enters, over any property that is discovered later, meaning it was not previously disclosed. Believe it or not, people do actually try, once in a while, to conceal assets. Now you know what you need to provide and receive from the other party. Your Denver family law attorney can help you understand those disclosures and how to use them to help you in your divorce or child support case.

July 12, 2011

MEDIATION AND YOUR DENVER DIVORCE, CUSTODY, OR CHILD SUPPORT CASE

The Denver area divorce and custody attorneys at Plog & Stein, P.C. are often asked about the topic of mediation. People ask us what mediation is, do they have to do it, how much does it cost, etc. Sometimes people also raise the issue of arbitration, which is different from mediation. Though to family law attorneys this subject may seem elementary, to many people it is not. We have even had people call our office believing that a child and family investigator appointed to their case is a "mediator." Thus, confusion exists.

In most divorce or custody cases in the Denver area, whether pre or post-decree, courts will require the parties to attend mediation. This also includes the parties being required to mediate when a modification, say visitation or child support, is sought. Mediation has become a much more commonplace requirement than it was a decade ago. Not all courts, but most, require mediation with each round of contested litigation. In one metro area court, the parties are often required to mediate twice, before a temporary orders hearing and then again before the final divorce hearing. The general presumption is that mediation will lead the parties to settlement, thereby alleviating the need for a hearing before the court. I believe it often times becomes just one more hurdles the parties must jump over prior to getting their day in court. If people want to settle they will. If not, they won't. That being said, I have seen some mediators work miracles on the most ugly of cases. Thus, I have not fully gone over to the dark side of cynicism.

Mediation is essentially an opportunity for the parties to try to work out their issues prior to a divorce, custody, or child support hearing. The mediator is a neutral third party trained to help facilitate agreements. The mediator cannot give legal advice or take sides. The mediation process is usually a back and forth with the mediator as he or she seeks to find common ground. Mediation is settlement discussions. As such, anything said in mediation is inadmissable in court. Additionally, your mediator cannot be called to testify in court as to the content of discussions. Thus, it is truly an opportunity for the parties to freely discuss issues. Often times, mediators will keep the parties in separate rooms, which I prefer. When in the same room, it is not uncommon to see the attorneys, this one included, writing down anything informative that the opposing party might say. Parties to a divorce or custody case should understand that they do not have to have attorneys present for mediation, even if there are attorneys on the case. It is not that uncommon for both parties and attorneys to agree that attorneys are not attending, particularly when you have two informed and intelligent parties. Of course your attorney will be happy to attend should you choose such.

When attending mediation, you are free to agree on all issues, or just some of them. Should agreements be reached, the mediator will most likely be willing to draft an agreement, generally called a memorandum of understanding. Once signed, most judges will view these agreements as binding. As such, I always inform my Denver are divorce and custody clients who chose to attend mediation without me that they should never sign an agreement unless they are 1,000% sure that they can live with it. Rather, I will tell them to say that in theory they believe there is an agreement, but that they want to run it by their attorney first. One does not want to get locked into something he or she is not fully ready to live with.

A significant factor of mediation is the cost. There are two routes people can go in the Denver metro area. Parties can choose to use a private mediator. The cost is generally going to be $150 to $300 per hour, split between the parties. There are several private mediators who I believe are truly gifted at getting the job done. In those instances in which the parties seem to be close to settlement and just need that final little push, I will recommend one of those mediators. One benefit of private mediators is that they are much more flexible with scheduling and can sometimes come to your attorneys office. On the downside, you do get some high priced mediators who are no more effective than the cheaper ones. The other route to go is to use the court mediation service. The 18th Judicial District (including Arapahoe and Douglas Counties) has a good mediation service, which generally costs $120 per hour, split between the parties. For the most part, these mediators are just as skilled as the private mediators. They just cost less. On the down side, scheduling can be more difficult and there is less flexibility in terms of how quickly you can get in. For the rest of the Denver area courts, people can use the state Office of Dispute Resolution, which provides the same services as offered in the 18th Judicial District for the rest of the state. Cost matters to people. If you have two attorneys also attending, let's say at $200 per hour each, and a mediator at $200 per hour, the parties are spending $600 per hour between them. Something to think about in terms of whom to use as a mediator and whether you want your attorney to attend.

Though mediation is generally required, courts should waive that requirement in instances in which one party has been the victim of domestic violence at the hands of the other. People can also seek the waiving of their mediation fees through the court service should they be deemed "indigent."

The family law attorneys at Plog & Stein are skilled and experienced at negotiating all aspects of a divorce, custody, or child support case. As we approach each case from a cost benefit standpoint, our attorneys are also adept at assessing what is the most financially prudent way of approaching your mediation requirement and what will be the most effective route for settlement. You know you have to mediate. How you do it is up to you. You may settle or you may not. You do have control in dictating the outcome and cost of your divorce or custody case, including as relates to the mediation process.

July 7, 2011

COLORADO CHILD SUPPORT IS MORE THAN JUST CHILD SUPPORT

90360_accounting_calculator_and_files.jpg

Most of the custody cases, or divorces with children, handled by the Denver area family law attorneys at Plog & Stein, P.C. include the issue of child support. When most people think of child support, they picture a monthly dollar amount that is paid, such as $500 dollars, and nothing more. In reality, there is much more that goes into any child support agreement or order.

Colorado statutory section, C.R.S. 14-10-115 sets forth the basic provisions for arriving at that monthly child support number. It also sets forth other rules and duties of financial importance that any party to a custody case, or divorce case with children, should be aware of. Those other provisions are as follows:

1. Pursuant to C.R.S. 14-10-115, in addition to basic child support, the parties are also required to split medical or similar expenses not covered by insurance proportionate to their incomes. Specifically, statute calls these "extraordinary expenses" and calls for the splitting of any such expenses after the first $250 per year per child paid out of pocket. I am not aware of case law indicating who pays that first $250, though most Denver area family law attorneys seem to interpret the rule as indicating the child support recipient bears that initial $250 expense. Everything after should be divided. Often times, people presume these expenses are to be split equally. This can include uninformed attorneys. This works out great for the person with the higher income, but not so great for the other person.

2. C.R.S. 14-10-115 also makes provisions for how the children should be claimed for income tax dependency exemption purposes. Specifically, statute indicates that the right to claim the child should be allocated proportionate to the parties' individual financial contributions to the child. Again, this boils down to being divided proportionate to income. For example, if wife makes $150K per year and husband makes $50K per year and there is 1 child, wife should be entitled to claim the income tax dependency exemption for the child 3 out of 4 years. As with medical expenses, people often have false assumptions about how to divide the exemptions. The two common mistakes our divorce and custody attorneys see are people either presuming that the primary custodian gets to claim the kids or that the right to claim them is automatically split equally. As with medical expenses, these false assumptions can leave one party without full benefit of the law. A signficant statutory factor all parties to a child support case should keep in mind is that if all court ordered child support due and owing in the year in which the payor is entitled to claim the exemption is not paid by the end of the year, the payor loses the right to claim the exemption. Payors beware. Recipients, be ready to inform the payor that he or she lost the right, bright and early on January 1.

3. Statute also authorizes the splitting of transportation costs related to transporting children for parenting time. Our attorneys rarely see this issue when we are talking about visitation schedules between parties in the Denver metro area. However, when one parent lives out of town or out of state, the cost of transporting the child for parenting time can be split proportionate to income and as an additional expense to the monthly child support amount. This can include the cost of a parent having to travel with a child for the parenting time, such as a parent's plane ticket, if the child is under 12.

4. The last topic for discussion in this child support article relates to the cost of extras, such as clothing, school expenses, and other necessities. Generally, child support is presumed to cover such costs. However, in a child support worksheet B situation, in which the payor has 93 overnights per year or more of visitation, or what the child support statute would refer to as a "shared" or "split" physical care situation, the basic monthly child support amount owed starts to go down. Because of such, it is presumed that the payor, in addition to the monthly child support amount, will also be kicking in on clothes, required school expenses, etc. This does not mean that the payor has to pay the other party his or her share of a pair of shoes for Billy or of a dress for Sally. It does mean that that person is also presumed to be buying Billy and Sally some shoes or dresses as well. If not, court intervention can be sought.

Child support is more than child support. Your Denver divorce or child support attorney will know this. Those at Plog & Stein certainly do. Now you will too.

July 5, 2011

DO I HAVE TO HAVE A LAWYER FOR MY COLORADO DIVORCE OR CUSTODY CASE?

As a Colorado custody and divorce lawyer, Denver is a big town full of big questions. One question we sometimes get from people who call to inquire about our family law services is, "do I have to have a lawyer to get divorced?" The answer is NO. You are not required to have an attorney to file a divorce or custody case. People can go through the process on their own, and they do.

As the economic fortunes of the nation and the state have turned, we have seen an increasing number of cases in which people try to do their divorce and custody cases on their own. As time goes by, we also have seen an increase in instances in which they do the initial case on their own, but end up needing an attorney later on, whether 6 months, or a year, or two years down road. Why? Because things were not done correctly in the first place. I's were not dotted, and T's were not crossed. The finer points of arriving at a fair agreement were not known to the parties at the time. Do you have to have a lawyer? NO. Can paying an attorney, even just to review your agreement before you sign on the dotted line pay off down the road? YES. There are two phrases or cliches that come to mind, "penny wise and pound foolish" or "an ounce of prevention is worth more that a pound of cure."

In this day and age of the internet, people can simply go on-line and find the divorce forms they need and instructions on how to fill them out. They can print off check-the-box separation agreement and parenting plan forms, for free. They can sit together, or alone, and fill those forms out. Though the forms are somewhat comprehensive, they are standard or stock forms. They do not provide all of the details that experienced family law attorneys might put into a final divorce or custody agreement. They do not explain the law or how the court system often works. They do not divulge the finer points. It is understandable that people would rather try to do their divorce, custody, or child support cases without having to pay a lawyer. Paying a lawyer is like paying a doctor. No one wants to do it until they have to.

The attorneys at Plog & Stein have seen multiple cases in which detail is left out by those trying to save some money on their divorces. We have seen cases in which the parties agree that one will keep the house, but have written in no language as to how the other will get his or her name off of the financing, or his or her equity out of it. We have seen people entitled to alimony waive it without even understanding their rights, or that a waiver is final. We have seen people pay too much child support, or receive too little, because they didn't know the law. We have seen people hand over the right to claim the children for taxes because they live mostly with the other party. We have seen people hand over parental responsibility (decision making) or residential custody without thinking about the ramifications of doing so and how difficult it is to change those items later on. I could go on and on, but I will stop. We have also seen instances in which these omissions, mistakes, or agreements made without truly understanding the law have led to thousands of dollars in legal fees being incurred down the road. Keep in mind, not all legal mistakes can be corrected.

Continue reading "DO I HAVE TO HAVE A LAWYER FOR MY COLORADO DIVORCE OR CUSTODY CASE? " »

June 27, 2011

DENVER AREA CUSTODY: MY KIDS ARE AROUND A NEW SIGNIFICANT OTHER

As a divorce attorney, Denver has been a diverse area to practice family law in over the years. Though cases and people are different, there are many themes that recur over and over again, whether the parties are from Aurora or Greenwood Village. In divorce cases with children or custody cases, a common issue that pops up time and time again is that of new significant others.

Though I'm sure things were different way back when, today it is not uncommon to see a new boyfriend or girlfriend in the picture before a divorce is even done. Sometimes people are even engaged to be married again before the ink is even dry on their divorce. I am not passing judgment on those people; I am just stating something the custody and divorce attorneys at Plog & Stein see. Imagine raising your kids, just you and the other parent, for years and years. You have had the opportunity to play an integral part in their upbringing, their habits, their discipline, and formation of whom they will be as they get older. Then suddenly one day, there is a stranger, a new parent-like influence in their lives. Naturally, most parents are going to be concerned, at least initially.

From a human standpoint, an initial, often-unspoken fear is whether the kids like the new person too much? Will the new boyfriend or girlfriend be a Disneyland type influence, thereby making me look bad when I act as a parent and discipline the kids? The more commonly raised concern is "my kids don't like his new girlfriend, she's mean" or vice versa. What can I do? In our Denver area custody, or divorce cases, we generally don't see courts getting too shocked or too upset at the notion of new significant others becoming involved in kids' lives. Clients will often ask, when is too soon? There is no black and white answer. Kids should not have added confusion or stress in an already confusing time, and some courts will take that into consideration.

Of course, safety issues come into play with new significant others. Are they nice to the kids? Are they abusive? Do they have a criminal record for domestic violence, drugs, crimes of a sexual nature, or anything else that might make them problematic around children? Will they say negative things about me in an attempt to affect my relationship with the kids? Do they have children of their own? How will those kids treat my kids? All of these are valid questions frequently asked of our family law attorneys.

When drafting your Colorado divorce or custody agreement, or before a judge seeking orders, there are a few things you can ask for to help alleviate some of the fears or concerns regarding new significant others:

1. Insist upon orders that each party will provide the full name, birth date, and a driver's license copy for all new adults who will be a significant part of your kids' lives. This should not only include new significant others who might move in, but roommates. Once can never be too cautious; we have seen cases in which the other party gets a roommate after the divorce that turns out to be a sex offender. You certainly also want to know if this person has had legal trouble related to drugs, violence, or domestic violence.

2. In terms of conduct around the children, often times attorneys will build language into agreements that neither parent will speak negatively about the other in front of the children or discuss case related adult or financial issues. You can go the extra step in drafting an agreement by also adding language to the effect of "both parties shall have an affirmative duty to remove the children from the presence of any third person engaging in such behavior." The court does not have jurisdiction over third persons. If does have jurisdiction over the parents and can create duties to shield your children from what third persons say. If you have concerns about the substance or alcohol use of others who will be around your children, you can also ask for language that the same duty to remove the kids applies to instances where they might be around people who are intoxicated. These are just words, but at least people are put on notice. Words can also be enforceable court orders.

3. A third area in which the presence of a new significant other can be troubling for parents relates to discipline. Most courts in divorce or custody cases view discipline as something for the parents, not new boyfriends or girlfriends. We have seen cases in which a new significant other has tried to assert herself or himself in a parental disciplinary role. This can be problematic and often causes ill feelings. This is particularly true when that discipline becomes physical. Only one time have I seen a judge advocate physical discipline, such as spanking, even when it's the parents. The involvement of new love interests in the discipline of your children can be curtailed greatly by adding cautionary language to your agreement, such as "the parties agree that neither shall allow any third persons or new significant others to engage in the disciplining of the children. Discipline for significant behavior issues shall be discussed between the parents and implemented solely by the parents." Again, no jurisdiction over the third person, but a duty placed on the parents.

Though parties cannot have control over their ex's moving on and finding someone new, they can create some protections to alleviate some of the concerns that new significant others in the kids' lives can bring. Certainly, Denver area family courts will deal with true safety or danger issues related to new significant others. Your Denver area divore or custody attorney can help you lessen or prevent some of those concerns for your children that don't quite rise to that level.

June 24, 2011

DENVER CUSTODY: 50/50 CUSTODY, I WANT IT AND WHAT DOES IT MEAN?

1205771_kids_on_family_beach_vacation_2.jpg

As a Denver area custody attorney, I am often faced with questions from both sides of a case regarding what people often refer to as "50/50 custody." It is quite often that people indicate they want "50/50" or state that they're fighting against their ex who wants "50/50." Ironically, in the same sentence, some people ask, "what does that mean?"

Keeping in mind that the term "custody" is no longer used in Colorado, people often ask about "50/50" or "equal custody" related to what we attorneys call "parental responsibility" or "decision making." By this, I mean the right to make major decisions for the child. This generally relates to major decisions regarding health, education, medical care, religion, and the general welfare of the child. The reality today is that most family law courts in the Denver metropolitan area follow the presumption that joint decision making or "50/50" legal custody is in the best interest of the children. Thus, I often say that barring instances of substance abuse, domestic violence, severe mental illness, or a demonstrated apathy towards making decisions, people will end up with joint or equal decision making. Battles over decision making or what used to be termed "legal custody" are not as common today as they were in the past. I believe the word is out that, barring extreme circumstances, the court will make it joint.

Once the joint decision making is ordered, parties to a custody case, or divorce with children, must still understand how it works. In essence, if one party believes that Timmy needs a tutor or Sally needs braces for cosmetic reasons, that party must confer with each other and the presumption is that they will agree on the issue. If they do not agree, each party has equal veto power. Thus, at times, court battles can arise over what decision is proper. Technically, a court cannot make a major decision for the parties. It can potentially change decision making, perhaps even as to that one issue, so that the child can get what he or she needs.

Continue reading "DENVER CUSTODY: 50/50 CUSTODY, I WANT IT AND WHAT DOES IT MEAN? " »

June 20, 2011

MARITAL DEBT AND YOUR COLORADO DIVORCE

The attorneys at Plog & Stein help many Denver area family law clients come to grips with the concept of what constitutes "marital debt." Ironically, when looking through the statutory section regarding divorce in Colorado, C.R.S. Title 14, Article 10, or the Uniform Dissolution of Marriage Act, one will find that there is no specific "debt" section. There is a section set aside for just about every other facet of a custody or divorce case, just not one for debt.

Without explanation, those lay people brave enough to try to figure out divorce statute and the meaning of "debt" may be left scratching their heads. In our divorce practice, we view debt almost as negative property in need of division. Setting that aside, definition is also needed. Courts generally view marital debt as debt incurred during the course of the marriage.

However, not all debt incurred during the course of the marriage is marital or subject to division. To understand what marital debt is requires a Colorado litigant to also understand what marital debt is not. Debt incurred prior to the marriage is non-marital or pre-marital debt. The debt a party has prior to the marriage remains his or her separate debt. This can include credit cards, student loans, a mortgage on a house, or any other pre-marital obligation. These debts are not divided by the court as part of the divorce process, though they can be viewed potentially as an economic circumstance when it comes to figuring out other aspects of a case, such as alimony or property.

Though pre-marital student loan debt is non-marital, there is an argument that student loans incurred during the course of the marriage are marital and should be divided. When working out a settlement agreement, or fighting in the courtroom, our general position is that student loans should be considered separate debt of the party incurring them. The benefit of the education gained will last a lifetime and well beyond the time period after the divorce in which financial entanglements may continue. On the flip side, one could argue that the other party derives a benefit from the student loans, such as more child support, based on more income, based on the education obtained via the student loan incurred during the marriage.

Another common misconception about marital debt is that if the debt is not titled jointly, it is non-marital. This analysis is generally wrong. Presuming that the individually titled debt was incurred for marital purposes, such as food, clothing, shelter, the kids, etc., the debt is marital, whether titled jointly or not. We see many families in which all the debt is in one party's name due to him or her having better credit. It would be grossly unfair to stick that person with all the debt incurred during the course of the marriage solely because he or she was able to obtain the credit. Most Denver area courts ascribe to this theory as well.

Continue reading "MARITAL DEBT AND YOUR COLORADO DIVORCE " »

June 19, 2011

Denver Divorce Lawyer Quarterly Movie Review

Denver divorce attorneys love movies, too. Unfortunately, this one has not seen as many movies lately as he would like. What was supposed to be a monthly movie review has sadly now turned into a quarterly review. Nonetheless, I will continue to strive to provide my input as to the cinematic masterpieces currently available for viewing:

1. Fast Five: staring Paul Walker, Vin Deisel, the Rock, and various other original actors. Fast Five is the fifth installment of the Fast and the Furious movie franchise. Though sequels can often leave the viewer questioning why another movie was made, this one is actually worth seeing. Set in Rio, Brazil, the movie finds the former cop and the criminal on the run in South America, being chased by US Marshall, the Rock. The right amount of action, violence, explosions, car chases, and picturesque Rio makes this movie worth seeing. May sound juvenile and might not be for everyone. If it entertains for 2 hours, a movie has done its job. This one does the job. Evidently, many others around the world think so as well, as the movie is now in the top 100 all time box office grossing films.

2. Rio: Starring a bunch of cartoon animals and people, including the whiny kid from the Social Network and Zombie Land. The right amount of action, violence, explosions, car chases, and picturesque Rio to make the movie worth seeing. Sound redundant? You could mix and match scenes and characters from this and Fast Five and still end up with two good movies. Great adventure following the mishaps of an American raised blue parrot who is taken to, and kinapped in, Rio. He cannot fly, but ultimately learns and saves the day. Great for 3 year olds and a 40 year old. 3D.

3. Pirates of the Caribbean-On Stranger Tides. Captain Jack Sparrow, the craziest pirate this side of somewhere, searches for the fountain of youth. Starring Johnny Depp and Penelope Cruz, the world's favorite pirate captains Black Beard's ship in race with the British and the Spanish to find eternal youth. Penelope Cruz does a good job replacing Kiera Knightly as the main female character. The mermaids are definitely not Ariel. Good for the whole family, over 7. Can they make a 5th? We will see.

Video Rental: Just Go With It. Starring Adam Sandler and Jennifer Aniston. Though I generally do not watch Jennifer Aniston movies, unless forced to do so by a certain lady I know and love, this movie was OK. There was enough crude Adam Sandler humor for me and enough girly romance for the ladies. Aniston is a divorced mother quietly in love with Sandler. Sandler is a rich plastic surgeon unsure of who he loves. My favorite part of the movie was the setting, the Grand Wailea resort in Maui, Hawaii. It was nice to see one of my vacation haunts on the big screen. Not Sandler's best, but it did the job on Tuesday movie night.

At Plog & Stein, we can't spend all of our time dealing with divorce and custody issues in Denver. Movies are an escape. If you need escape from your divorce case, see a movie, or call us to get it done.