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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July 22, 2011

DENVER CUSTODY: CFI'S AND PRE'S

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

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

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

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

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

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July 15, 2011

DENVER DIVORCE AND FINANCIAL DISCLOSURES

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

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

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

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

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

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

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

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

July 12, 2011

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

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

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

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

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

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

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

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

July 7, 2011

COLORADO CHILD SUPPORT IS MORE THAN JUST CHILD SUPPORT

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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.

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