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.

June 16, 2011

ENFORCING A COLORADO CHILD SUPPORT ORDER

1317230_dollar_sign.jpg

As a Denver area family law attorney, almost every divorce (with children) or custody case I have handled includes the issue of child support. As indicated in prior blog posts, child support is the statutorily dictated amount that the court deems appropriate for one parent to pay the other for support of a child. Also, as indicated previously, child support law generally derives from statutory section C.R.S. 14-10-115.

While surfing the internet this evening, I came across an article involving a former NBA player with multiple kids who was grossly behind on his child support. After reading, I pondered whether the mothers of the children were aware of their options? Though the average person isn't owed $100,000, his or her child support still matters.

Once orders are entered, the recipient of child support is left with the expectation, and hope, that he or she will get his or her child support. When formulating a child support agreement, it is important to make sure that specifics are included. This will include specifics as to when each payment is due (a specific due date) and how the support will be specifically paid. Child support will generally be paid through one of 3 mechanisms:

1. Paid directly to the recipient by the paying party; or
2. Paid through an income assignment (sometimes referred to as a garnishment or wage assignment); or
3. Paid to the Family Support Registry, whether directly or through an income assignment.

Again, specifics as to pay date(s) and mechanism are important for purposes of preventing confusion or argument down the road. No matter how much specificity is put into an order, unfortunately problems can arise down the road, meaning people don't always pay. Fortunately, Colorado statute sets forth various remedies an attorney can pursue for collecting back child support:

1. Issuance of an income assignment, if one was not previously ordered, is one way to go. A blank objection form will need to be provided with it. This alone may not resolve the issue of back support owed, but if the payor is employed it will help ensure future payments. See 14-14-111.5

2. The filing of a verified entry of support judgment and affidavit of arrears is another remedy. Each child support payment not paid becomes a judgment, as a matter of law. No motion needs to be filed. Just filing the proper papers leads to enforceable judgment. Interest accrues on each unpaid payment at the rate of 12% per year, compounded monthly. Once judgement enters, a support garnishment (different from an income assignment) can be filed against the payor's wages to collect additional funds beyond the current child support amount. The judgment can also be used to lien property or seize funds in certain assets such as bank accounts. See 14-14-105

Continue reading "ENFORCING A COLORADO CHILD SUPPORT ORDER " »

June 13, 2011

DIVORCE AND YOUR DENVER AREA HOME

1343678_house_and_money.jpg

Plog & Stein, P.C. is a Denver area family law firm whose practice has been solely dedicated to family law for roughly a decade. A major aspect of our caseload over the years has been divorce. A major aspect of our divorce practice over the years has related to division of marital property. A major facet of marital property division over the years has been disposition of the marital home.

Back in the late 1990's and into the early mid-2000's, the major asset held by a couple in a divorce case was their home. Back then, people actually fought over homes in terms of who would keep the home and how much the person leaving it was going to get. Now, as then, there are essentially three options for disposition of a home in a divorce case:

1. The wife keeps the home.
2. The husband keeps the home.
3. The home is sold.

Again, these three options are the same today. However, in what I will call the "olden days," if husband or wife was going to keep the home, generally the parties would have to agree upon the value or an expert home appraiser would be hired to provide a value. Back then, values were increasing and everyone wanted the house. Because values were increasing, the general outcome would be one party agreeing to keep the home and refinance it into his or her individual name. As part of the refinancing process, he or she would take out essentially half of the equity to be given to the other party. People gladly took on the debt alone, as there would be a pay day at the end based on increasing values. If neither party wanted the house, it was sold and the parties generally had equity to split.

One result of the increasing home values and so much equity accruing was that people would pull money out of their asset or investment via a second, or sometimes third, mortgage. People believed the good times would never end, and their homes almost became like personal banks from which to draw or borrow funds. Why not, the value was just going up?

The olden days are gone. As Denver area divorce attorneys, we have seen an alarming trend over the last 3 to 4 years. As we all know, home values have decreased significantly. In some areas of town, homes have decreased 25 - 30%, or more. Fortunately, we are not in Las Vegas or Phoenix, where values have dropped 50% or more. As a result, and factoring in the drain of equity via second and third mortgages, probably 9 out of 10 divorce clients come to us with no equity in their home, or so little equity that the house will be upside down after factoring in realtor fees if sold.

As a result of the decreased home values, it seems as though no one wants the home. If they do, they have a much more difficult time refinancing solely into their individual names. In the olden days, when credit markets had not dried up and subprime loans were easier to get than a cold, people could refinance a home in 60 to 90 days, and divorce orders often reflected such. Today, if someone decides he or she will keep the home, some metro area judges have even been known to give people up to 3 years to refinance. For those lucky enough to have equity to divide, the party leaving the home may have to be resolved to waiting some time before his or her equity can be pulled out via a refinance.

Of course having to leave your name on the mortgage presents its own set of concerns. What if the spouse staying in the home defaults on the loan? The mortgage company will certainly come after both parties. Generally parties will agree, or courts will order, that the home be immediately sold in the event of a missed mortgage payment; this poses another challenge to our clients.

Let's assume that the parties agree, or the court orders, that the house will be sold. For the roughly 9 out of 10 families who are upside down, a sale will mean digging into their pockets or drawing from another asset to come to the table with money. Sometimes this can be tens of thousands of dollars. The reality is that the average family does not have that kind of money. Thus, reality further sets in, leaving them in the position of having essentially 2 options: short sale or foreclosure. I will state that prior to 2007, our attorneys had never heard the term "short sale." Today, it is commonplace. With no one wanting the marital home and no one having the funds to bring to the closing table, the reality is that short sale or foreclosure are now common resolutions to disposition of the marital home.

If one party wants to foreclose and the other does not, bankruptcy may be just around the corner. We sometimes see bankruptcies filed while the divorce case is pending. The insolvent party generally knows to do this before the court enters orders regarding the home. Some people get out of their court ordered or agreed upon orders regarding the home, after the fact, via Chapter 13, which can provide post divorce protections that Chapter 7 cannot. Thus, someone may have his or her debt absolved while the other is left holding the bag.

The primary thing that we attorneys can do today, besides remembering the olden days, is to make sure that we help our clients arrive at appropriate agreements, covering all the angles:

1. Providing your client who is keeping the home ample time, at least 1 year, to refinance prior to a forced sale.

2. Providing protective language to our clients not keeping the home, including insisting on a set time to refinance and insisting on language regarding sale in the event of a missed mortgage payment.

3. If our client is the one not keeping the home, we will generally insist on language indicating that the party keeping the home shall be solely responsible for any debt related to the home and shall indemnify and hold our client harmless.

4. In the event of a sale where there is no equity, we will insist on specific language indicating that any liabilities or money owed, including that to be brought to the closing table, will be split (generally equally). We will also insist on specific language as to the house being put on the market expeditiously and kept on the market, in sellable condition, until sold.

5. Sadly, in some cases, the parties actually agree that the home will go into foreclosure and that neither will be responsible for the debt, as they are both filing for bankruptcy.

At Plog & Stein, we hope that the good old days come back to Denver and that people are able to view their homes as an asset worth fighting over. Today, it seems people are left fighting over how to split a negative. Our attorneys can help you resolve what to do with your home in the divorce case, whether it is upside down or right side up. The key is specificity in any agreement or order.

June 11, 2011

Interstate Custody and Colorado Law

Over my years of practice as a Denver area divorce and custody attorney, I have become familiar with the tenets of Colorado statute regarding interstate custody issues. Whether in a divorce or custody case, when interstate custody issues arise, the primary relevant statutory section is what is called the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA to us family law attorneys.

The UCCJEA is codifed in Colorado statute as C.R.S. 14-13-101 et. Seq. The UCCJEA sets forth various rules and guidelines for dealing with interstate custody cases. The major ones are as follows:

1. An original custody action shall be started in the child's "home state," which is the state that the child has resided in for the 6 month time frame just before the case is filed. Temporary absences from the home state do not count against the 6 months. Additionally, you can still file for a child under 6 months of age.

2. For purposes of modifying visitation or custody orders, the originating state, meaning the state in which orders were originally entered, generally retains jurisdiction so long as the child or one of the parents remains in that state. In certain instances, if the child has been gone so long from the originating state that it is no longer a "convenient forum," then the originating state may give up jurisdiction.

3. If both parents are gone from the originating state, then jurisdiction would follow the child to his or her new "home state."

4. Emergency jurisdiction can be sought in another state where the child may be, provided the court in that state finds there to be a true emergency warranting a temporary/emergency exercise of jurisdiction.

Though these seem like simple rules, it is not uncommon for family law attorneys to be preplexed or confused when faced with certain facts for a client. If your divorce or custody case involves interestate child issues, it is important for you to find a Denver area attorney with a firm grasp of the UCCJEA. The attorneys at Plog & Stein are familiar with and adept at handling these UCCJEA cases. We have seen cases over the years in which a party or attorney wrongly files a case in Colorado when jurisiction clearly rests in another state. In those instances, we do not hesitate to seek dismissal for lack of jurisdiction.

Aside from wanting your case completed in a timely manner, it is never fun to spend money on a case only to see it dismissed because interstate jurisdiction was not proper.
At Plog & Stein, we strive to thoroughly assess all aspects of any interstate custody case or divorce involving children.

June 7, 2011

NEW PLOG & STEIN, P.C. DENVER DIVORCE/CUSTODY WEBSITE

Plog & Stein, P.C. is proud to announce that the newly completed firm website is now live and functional. Potential and current Denver area family law clients, with divorce, custody, or other domestic relations needs, can now contact us at plogsteinlaw.com.

In addition to information posted fairly regularly on our blog, we are now pleased to offer more insight and knowledge regarding our firm, our attorneys, and our areas of practice, including divorce, custody, child support, alimony, property division, contempt of court, restraining orders, modifications, and more.

Portions of the site are still under construction, but the site as a whole is generally up and running. We have also included a Frequently Asked Questions section, which will be updated from time to time to give readers a variety of insights as to various aspects of family law.

At Plog & Stein, we will continue to strive to provide quality family law representation to our Denver area divorce and custody clients. Now that the website is essentially done, I can get back to blogging, include the newest monthly movie review I owe my readers.

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

May 25, 2011

DIVORCE AND YOUR CHILDREN

As attorneys practicing divorce and custody law in the Denver, Metropolitan area we have all become familiar with what I call "the Judge Speech." At the end of many divorce or custody cases in which either a hearing is conducted or an agreement is arrived at in court, the judge hearing the case will congratulate the parties for arriving at an agreement or getting the case done and will launch into a speech about the children, getting along for the children, research says..., etc. Each judge will have his or her own words of wisdom put forth to the parties with the hope of sending them on their way and that they don't come back.

After over a decade of hearing "the speech" and seeing many people disregard it down the road, an attorney can become jaded to the words of wisdom. While in court yesterday, coupled with an incident at my daughter's swim practice which will be discussed below, my optimism that the words of wisdom being worthwhile and my faith that people might actually listen was renewed. People generally don't realize, but family law attorneys are constantly swimming in the pool of fighting and negativity. As such, it is nice to have that hope renewed.

Divorce can impact all involved. I have heard references to divorce being as emotionally painful as a death in the family. I believe it. This can be particularly true for the children. The effects of divorce on children can be different than the effects in a custody case in which the parents have been apart for years or were never living together. In many custody cases, the children are already accustomed to two households and two families. In a divorce case, the children are faced with uncertain times and the loss of the security of having one home and two parents there to love and care for them at the same time. This is not to say that children in custody cases do not have the same life changing event, it is often just different.

Going back to the judge, while in court yesterday, after finishing up a post-divorce custody matter in which the parties have been battling off and on for nearly a decade, the judge gave her speech. I sat back and listened to her well put words and thoughts about whether these people had ever heard her words before, over many years and many battles. I also pondered that people need to know. There are many books out there on divorce and the effects on children. In this day and age, who really has time to read a full book when caught up in an ugly divorce case?

Continue reading "DIVORCE AND YOUR CHILDREN " »

May 17, 2011

Colorado Paternity Law Ramifications and the Terminator

Arnold.jpg

Plog and Stein, P.C., practices family law in the Denver, Colorado metropolitan area. Though our cases generally deal with divorce and custody, from time to time we get what are called "juvenile" cases, which are generally child support or "paternity" cases.

In Colorado, paternity cases stem from C.R.S. Title 19, Article 4. While driving to work today, I heard mention of Arnold Scharzenneger and his recent troubles. I was shocked to hear that his recent marital troubles stemmed from the fathering of a child with someone from the household staff. This got me thinking about paternity law as applicable to him.

The news story regarding Arnold indicated that the woman with whom he fathered the child roughly 10 years ago was married. The first thought that popped into my head was that unless paternity testing was done or he owned up to it in an offical capacity, the legal presumption would be that the child was the child of the woman's husband, not Arnold. Pursuant to C.R.S. 19-4-105, a child is presumed to be the child of the husband if the parties were married or divorced at least 300 days after the marriage is ended. It is my understanding that Arnold has acknowledged and supported the child. Thus, the husband is off the hook in terms of bearing financial responsibility for his wife's indiscretions.

However, what if Arnold hadn't step up to the plate? Pursuant to C.R.S. 19-4-107(1)(b), the husband in Arnold's case would have had only 5 years to legally challenge whether the child was his due to the parties being married. This does not seem fair. What if the man started to have suspicions when the child was 10? The current law almost promotes an aire of discord for married people in that if a husband is not 100% sure that a child is his he better seek a paternity test before the child turns 5. I would like to think that in most instances married people have children with their spouses. Unfortunately, our lawyers sometimes see the opposite. This poor man could have been potentially legally forced to pay child support or more for a child that was not his.

Another thought that worked its way into my thought process was that of child support. Though child support is generally set forth pursuant to C.R.S. 14-10-115, in paternity cases, child support must also be analyzed pursuant to Title 19. In a divorce or custody case in which paternity is not an issue, child support is generally assessed back from the date of the filing of the case or service of legal papers on the other party, whichever came first. In a Title 19 case, child support can be assessed all the way back to the birth of the child. This can include birthing costs. Additionally, while the court in a regular divorce or custody case will generally follow the statutory guidelines in determining child support, the court in a paternity case has more latitute, pursuant to statute, to consider other factors.

Why the difference in treatment of child support in a paternity case as opposed to a divorce case? I have pondered this question from a public policy standpoint. I have determined that the presumption is that in a marriage case, the child has been supported by the payor while the parties were together. In a custody case, the actual paternity is not an issue and the legislature presumes that once paternity is known the payor (generally the father) will do the right thing and support the child. This is not always the case. In the paternity case, the presumption must be that paternity is not known, and therefore, support has not been paid consistently since birth. What we have is a wide array of standards that don't always gel or make sense. A client needs to make sure his or her attorney is abreast of the variations between a custody or divorce case and a Title 19 paternity case as relates to child support.

There are ramifications for all of our actions when we procreate. I am guessing Arnold didn't think about that at the time. He also probably did not ponder that his actions could affect another man financially. Now his True Lies have made him the Terminator of his marriage and, like Conan the Destroyer, he has helped ruin someone else's marriage, leaving the husband and his own family as Collateral Damage.

April 30, 2011

Colorado Divorce and Adultery

While driving to work through the suburbs of Denver one morning this week, I heard a story on the radio regarding the Colorado Legislature and the repeal, or potential repeal, of Colorado criminal statutes regarding adultery. I then got to thinking about Colorado divorce law and adultery. If I had a nickle for every time a client or potential client raised the issue of his or her spouse cheating, I would be a rich man.

Though infidelity is a horrible thing for one spouse to do to the other (or the children), the reality in Colorado divorce law is that, for most purposes, adultery doesn't matter. It makes for great headlines, such as with Tiger Woods. Though his infidelity wrecked his marriage, and unfortunately his golf game, it would have had no bearing on his Colorado divorce case.

Colorado is a "no fault" divorce state. In essence, this means that one does not need to state a specific reason why he or she wants a divorce or prove anything, such as adultery. As such, adultery is essentially irrelevant in a Colorado divorce case. Judges don't want to hear about it, unless it is relevant to another aspect of your divorce case.

Adultery can be tangentially relevant in generally three circumstances in a Colorado divorce. Adultery can matter in an instance in which a person is cheating and spending or wasting marital money on their mistress or mister, such as buying him or her jewelry, or for clandestine vacations to Las Vegas. In such instances, the infidelity can matter in terms of the mixing and matching of marital assets and debts. Another instance in which adultery may matter is if one spouse, though not necessarily buying items for his/her mistress/mister, is spending marital funds to support her/him. In such an instance, the cheating spouse's ability to provide funds to support his mistress may harm him in a battle over alimony and his ability to support his wife. If he can support his mistress, certainly he could pay alimony to support his wife.

The last area in which adultery may be relevant relates to the children. In this day and age, people sometimes have a new significant other before the divorce is even done. Without passing judgment, I will state that courts can get concerned with infidelity if one spouse is bringing his or her new special friend around the children in such a manner that confuses them, or is carrying on in an inappropriate manner around the kids.

Beyond the above stated, adultery, though certainly wrong, just doesn't matter in a Denver area divorce court. I've seen too many crying people (women and men) looking for some sort of vindication for their broken hearts. I wish the family law attorneys in our Denver area firm could tell them something different, but we can't. There are states in which it matters to the courts, just not ours.

April 20, 2011

Colorado Custody and the Taking of a Child

While relaxing one Sunday morning,reading the paper, I came across a brief article in the second section regarding a story in which a mother and her boyfriend had taken her children and fled east, I believe to Kansas or Oklahoma. At the end of the Denver Post article, it indicated that the mother and her boyfriend were in custody. This got me thinking about the various situations I have seen over the years in which one parent or the other flees the state of Colorado, whether to another state or country, and what we have had to do to get the child back. Though these situations are not common, they do pop up from time to time in our divorce or custody cases.

Firstly, those pondering the foolish notion of leaving the state with their child should know a couple of things. If there are no custody orders in place or there is not a pending divorce or custody case, you are not breaking the law in any way should you leave the state with your child. If there are orders in place, you have a problem. Fleeing the state with your child when there are orders in place which you are violating can lead to contempt of court proceedings, felony criminal charges (yes, there is actually a criminal statute regarding "violation of a custody order"), and potentially the ultimate loss of meaningful time with your child. If you leave in a legal manner, you still may be forced to bring the child back if a custody case is filed in Colorado within 6 months of your leaving.

If your ex leaves the state in violation of a custody order, or leaves without permission, there are various things you can do. If there are custody orders in place, you should immediately contact law enforcement. If you know your ex has fled the state with the child, the FBI may be willing to get involved, as the crossing of state lines may invoke federal jurisdiction.

Beyond contacting law enforcement, you should, whether on your own, or preferably with the assistance of an attorney who knows what he or she is doing, put together an emergency motion to be filed with the court, seeking an immediate order for possession of the child and a writ of assistance, or "pick-up order," which directs law enforcement to take custody of the child upon contact. Once an order is obtained, you are then left to deal with the state in which the child and ex are located. In most situations, you will need to get your Colorado custody order certified through a court in the other state. At that point, the police in the other state, though generally not immeidately enforcing a Colorado custody order, will likely be willing to help enforce an order to get the child which has been domesticated in that state. In some instances, if you are lucky, law enforcement in the other state might assist you without registering your order there.

Of course one big factor is knowing where the child is. Additionally, if you are forced to seek relief in another state, you should plan on being out there when law enforcement executes the writ of assistance. If you are not there, where will your child be placed, foster care? This is certainly not optimal.

If there are no custody orders in place and a case has not been started, you may still seek relief, assuming your child and ex have not been gone from Colorado for more than 6 months. Once a case is filed and the other party is served, there is an injunction in place prohibiting either party from leaving the state with the child without permission from you or a court order. Thus, there are instances in which lack of an order does not put a stop to your efforts to get the child back. Violation of this injunction can be serious, just as a violation of a custody order.

Beyond interstate issues, there are instances in which one parent flees to another country with a child. In these instances, the steps can be much more difficult. When dealing with getting a child back internationally, the first point of reference for you or your attorney will be contacting the US State Department. Many nations of the world are signatories to the Hague Convention, which is, in essence, an international agreement or treaty. One aspect of the Hague Convention relates to dealing with international custody and getting children back. Unfortunately, not all countries are Hague Convention members, for instance Japan. Whether Hague members or not, some countries are also lawless or in a state of chaos. The State Department will know what countries are or are not members. If your child is located in a non-Hague country, the State Department may still be willing to assist.

Remember, too, that international travel requires a passport. As such, fleeing the country with a child is not as easy as one might think.

As with interstate cases, knowing where you child is with specificity is vital. Sometimes, the greatest tool can be good insight, intuition, and investigation. Luck and timing can also play a big part. The reality is that getting your child back from another state or country can be a difficult, emotional process, laden with technicalities and twists and turns. There are remedies out there to assist you, and the hope is that the law works with you to ensure the safe return of your little one. The bigger hope is that you never end up in such a situation.

April 10, 2011

Custody Meets Child Support: The Interplay Of The Two In Colorado Family Law

1212787_toy_boy.jpg1331234_money_01.jpgDenver clients is "How does custody affect child support?" Many people ask this because they have talked to family members or friends who have been through a divorce, or others they find knowledged on the subject. Often they have part of the story or certain misconceptions based upon the war stories of others. As such, I will attempt to enlighten the reader with the basics.

1. "Custody" is no longer a word used in Colorado, but rather "parental responsibility." Visitation is no longer used either, but rather "parenting time." It is quite common for the child support payer to be accused of wanting more parenting time to lower his or her child support. It is also quite common for the child support recipient to be accused of wanting the non-custodial parent to have less parenting time so as to keep child support higher.

2. The reality is that parenting time can affect child support. Pursuant to the Colorado child support statute, C.R.S.14-10-115, child support will be calculated under two different scenarios, a "Worksheet A" or a "Worksheet B." Worksheet A means the non-custodial parent has 92 or less overnights per year with the child. In such instances, the parenting time has no bearing on the amount of child support he or she will pay. Worksheet B means the non-custodial parent has 93 overnights or more per year with the child. In this instance, child support may start to go down incrementally. The closer a child support payer gets to 182 overnights per year (50/50 time), the lower his or her child support will go.

3. People often presume that 50/50 parenting time, or truly joint physical custody, means no one owes child support. What they are missing is the fact that child support is not just based on time. Let's say a Colorado woman going through a divorce makes $100K per year and her husband makes $50K per year. In such an instance, were that woman to come see me at the office of Plog & Stein, I would have no choice but to inform her that based on the income difference between her and her husband she would likely be paying child support. The point is that there is more to just visitation being the primary factor, and one should never presume that equal time means no child support.

4. A silly question often asked is "if he or she is not paying support, can I withhold visitation?" My answer is a big fat NO. Child support and parenting time do not go hand in hand. If the custodial parent withholds visitation due to non-payment of child support, he or she opens himself or herself up to great risk. Courts equate child support and parenting time as separate issues, and will generally hand the person withholding the visitation his or her rear end on a silver platter. Part of being the custodial parent is the ability to foster and value the relationship between the child and the non-custodial parent, as set forth in C.R.S.14-10-124. If child support is not getting paid, there are remedies, such as contempt of court pursuant to Rule 107 of the Colorado Rules of Civil Procedure.

5. Finally, family law judges, family law attorneys, custody experts, and a decent portion of people with divorce, custody or child support cases know full well about what I call the Battle for 93 Overnights. Though attorneys deny it, they fight for it. Though parties say they don't care, they do. I have even seen a judge in an unnamed county in the western part of the metro area (near a brewery that rhymes with "Doors") make sure he ordered exactly 92.5 overnights for the non-custodial parent to keep him from getting that magical 93 overnights.

Finances and the ability to survive matter to everyone, whether paying or receiving child support. Try to keep child support and parenting time/custody separated in your mind. If you are asking for more time with your kids, make sure it's for the kids, not the money. If your ex wants more time and the kids are safe and happy, don't withhold it so you get more money. Though child support and money interplay and intersect, kids come first, money comes (or goes) second.

0" class="mt-image-left" style="float: left; margin: 0 20px 20px 0;" />