January 6, 2012

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

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

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

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

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

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

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December 4, 2011

Businesses, Property Division, And Your Denver Area Divorce

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

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

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

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

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November 23, 2011

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

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

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

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

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

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

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November 1, 2011

MODIFICATION OF YOUR COLORADO CHILD SUPPORT ORDERS

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

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

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

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

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

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October 18, 2011

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

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

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

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

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

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September 26, 2011

Statutory Protections at the Start of Your Colorado Divorce Case

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

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

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

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

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

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

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

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September 23, 2011

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

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

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

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

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

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

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

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

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

September 15, 2011

Witness Deadlines and Your Colorado Divorce or Custody Hearing

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

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

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

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

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

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

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September 5, 2011

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

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

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

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

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

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August 28, 2011

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

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

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

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

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

You are not common law married just because you:

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

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

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

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

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

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August 14, 2011

DENVER DIVORCE: THE 3 COURT STAGES

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

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

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

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

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August 10, 2011

BACK TO SCHOOL: YOUR DENVER DIVORCE OR CUSTODY CASE

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

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

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

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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.

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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.

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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.

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