Articles Posted in Divorce

stock-photo-35514910-big-pile-of-dollarsGoing to see a lawyer is like going to the doctor. None of us want to do it. Just like we don’t ask to be sick, we don’t ask to have legal problems. In reality, we will all need the assistance of a doctor at some point over the course of our lives. Likewise, may of us will need the services of an attorney at some point in our lives. For a large portion of the population that need will arise within the setting of a divorce or custody case. Just like going to the doctor, no one relishes the notion of paying an attorney to help fix their legal problems. Contrary to common belief, there is no statute indicating that the “loser pays.”  However, fortunately there are some instances in which statute provides litigants an opportunity to recoup attorney fees in a Denver divorce, custody, or child support case, depending on the facts and circumstances.

Below are some of the primary or common situations in which one might collect, or recoup, some of his or her attorney fees when going through a Colorado family law case.

1. Pursuant to C.R.S. 14-10-119, the court in a divorce, child support, or custody case has the authority to allocate fees and costs. Specifically, statute indicates that the court can, after considering the financial resources of the parties, award attorney fees and costs for time periods before, during, or after the case. Section 119 only applies to cases brought under “Article 10,” which deals specifically with divorce, custody, and child support. C.R.S. 14-10-119 is not applicable to juvenile cases, such as a paternity case. Section 119 is utilized when there is a significant income or asset disparity between the parties and there is case law setting forth the notion that the purpose of this section is to equalize or balance the positions of the parties related to the cost of litigation. In essence, statute makes provisions for leveling the playing field in a finical sense so that the party with significantly greater resources cannot just steamroll over the other. Section 119 does not assign fault and should not be invoked based on bad behavior of the other party. One should keep in mind that fees or costs under 119 can be sought while the case is pending and one need not wait until the case is done. Litigants who are similarly, or even roughly, financially situated should not anticipate an award of fees under 119, unless one has an attorney and on does not. In those instances, a court might assess fees.

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roses-n-rings-1362457-mWhile it’s not romantic to consider what will happen if the marriage ends, for many Colorado residents, it makes sense to get a prenuptial agreement drafted so as to protect income or assets. Prenuptial agreements can address property division and debt, obligations related to wills or insurance policies or pensions, and spousal maintenance. They cannot address what will happen to the children, because the courts must consider the children’s best interest regardless of what spouses agreed before the marriage.

Under the Uniform Premarital and Marital Agreements Act, there are new requirements for prenuptial agreements and marital agreements signed on or after July 1, 2014. The law doesn’t affect agreements signed before that. In general, the law gives greater protection to a spouse that may not fully understand what rights he or she is giving away, though its terms, like many laws, leave some room for judicial interpretation that may lead to less predictable outcomes for a time.

Under the new law, a premarital agreement is unenforceable if a party against whom enforcement is sought proves: (1) a party’s consent to the agreement was involuntary or the result of duress, (2) the party didn’t have access to independent legal representation, (3) the agreement didn’t include a notice of waiver of rights at the time signatures were obtained unless the party had independent legal representation; or (4) the party didn’t receive an adequate financial disclosure.

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From time to time, in my limited spare time, I read. As the inner nerd in me still exists, that includes looking at odd topics related to divorce laws in other places. Colorado is one of fifty states. Though our laws have similarities to other states, they also differ. To Denver divorce attorneys, our statutes makes sense, though not always, largely based on familiarity and the fact that change often comes at a snails pace. Over the years I have read horror stories from other states, such as Massachusetts, which apparently does, or did, factor in new spouses’ incomes when recalculating alimony (properly termed maintenance in Colorado). I recall a story a few years ago from somewhere back east, in which a man was ordered to pay alimony at the time of his divorce, with his wife ultimately remarrying and his alimony stopping. Once the wife divorced her second husband, she was able to go back and get alimony again from her first husband. Upon reading that story, I concluded that payers of alimony in Colorado should thank their lucky stars that alimony terminates upon remarriage of the payee and cannot be revived. This was, perhaps, the oddest article I had seen until March of 2015.

While browsing the internet in my efforts to know more than I did the day before, I came across an article related to divorce and property that takes the proverbial cake. The specific article related to not another state, but another country, England. In this article regarding a British divorce, a husband and wife were married in the early 1980’s and divorced in the early 1990’s. Presumably all issues of property division and support were resolved at that time. As U.S. law is rooted in English law I could not help but presume that procedures and notions of fairness would be similar to ours. Those presumptions were wrong. In this case, during the next roughly 20 years, the ex-husband has started some sort of energy company and amassed a fortune in excess of $100 million pounds (pounds being worth significantly more than our dollars). In the article, the ex-wife, of far less means and perhaps down on her luck, was able to convince a British court that she should be able to come after her husband years later, essentially must because he had made out like a bandit and she had not. The British court, seeming to be at the appellate level, remanded the case back to the trial court, having ruled that she could make a claim against the fortune he had amassed subsequent to the divorce and division of assets.

Upon concluding the article, I sat bewildered and amazed, imagining the dramatic and chaotic state the Colorado family law community would be left in should our divorce laws regarding division of property take a turn towards the bizarre such as they have across the pond. In Colorado, pursuant to C.R.S. 14-10-113, property is divided at the time of the divorce decree, meaning when the initial divorce case is over. Beyond potentially filing an appeal, or perhaps in cases in which an asset is hidden or not disclosed, there is no going back to seek property amassed after the divorce from the former spouse. If our laws mirrored those in the English case, divorce would just be a new chapter in a life long saga of back and forth with the courts, as either spouse waited to pounce on the post-divorce good fortune of the other. A decision like that in the British case would turn divorce law in Colorado on its head. Fortunately, property divisions are final and our courts recognize that but for lingering issues of support which can arise, property divisions are final and people are given the latitude to move on with their lives.

As I look across the ocean, moving east to west, it seems that sanity mapped up with the law grows the father one moves towards the Rocky Mountains. To learn more about your property rights and representation in a Colorado divorce, contact an experienced attorney.

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Divorce is never easy. The Denver family law attorneys at Plog & Stein see the emotional and financial toll divorce can have on a family. As such, we strive to provide clarity and great outcomes in uncertain situations. Divorce cases in Colorado can entail various issues aside from custody, including alimony, division of property, and division of debt. Though an experienced attorney can help provide clarity in any divorce case, there are gaps in Colorado statutes which leave one scratching his or her head, pondering what the legislature was thinking when it left things out of statute which should be simple, and just make sense?

1. C.R.S. 14-10-113 is the statutory section related to the allocation, or division, of marital assets or property. Statute lays out various rules related to the definition of property and how a court might divide such. The division of property, whether related to real estate, financial accounts, or even pots-and-pans or furniture, is a common issue in divorce cases. Oddly, one issue so intertwined to the division of property is completely absent from the statutory section encompassing Colorado divorce law, that being DEBT. The Uniform Dissolution of Marriage Act, C.R.S. Title 14, Article 10, is completely void of a section, or even explanatory language, related to debt. In practice, a Colorado divorce lawyer will look at a case from a balance sheet standpoint, trying to essentially equalize the allocation of property and debt. Maxims which hold true regarding property, such as premarital property is separate property, also hold true for debt. For example, student loans brought into the marriage or a credit card balance stay with the person bringing those obligations in and they are not part of the marital mix. Why? This is just the way it’s done.

The Colorado legislature could, and should, take the time to codify how marital debts and separate debts are commonly treated in the court, or in a negotiation setting. It is mystifying that one of the cornerstone issues of contention in any divorce case warrants no mention in statute. Furthermore, statute could go further, after even referencing debt, and define what is marital. Debates often arise regarding whether certain debt is marital. For example, credit card debt, regardless of how titled, used for food, clothing, shelter, family endeavors, etc., is generally considered martial. Contention arises when one person has credit card debt for his or her own personal expenditures, such as a trip to Las Vegas or perhaps plastic surgery. Some of the debate could be eliminated by clear statutory language defining what debt creates the negative part of the marital estate and what does not.
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Whether a Douglas County divorce attorney, or one practicing just below the slopes of the Aspen ski hills, we all know the importance of financial disclosures in any divorce case. Colorado Rules of Civil Procedure rule 16.2 sets forth the procedural aspects, or rules, a court expects parties, with or without attorneys, to follow related to case management. This includes rules regarding disclosure of documents and information related to the financial issues of a divorce case, which can include property division, debt division, maintenance (alimony), and child support.

Sadly, from time to time, we see cases in which one party will attempt to hide assets from the other party. In most cases people are forthcoming, understanding that they are indicating to the divorce court, under penalty of perjury, that they have provided a complete listing of their assets and debts. However, every once in a while, you will get that one person who feels they might get away with not disclosing a bank account, stock account, or perhaps that tangible piece of property, such as artwork or a piece of expensive jewelry. Of course, there are limitations to what an attorney, or even a private investigator, might be able to find. In employing the tricks-of-the-trade, family law attorneys know how to go through the various financial disclosures to assess whether there are other items being concealed. Of course, this is not full proof. Likewise, people may come to an attorney after their divorce is done, indicating they believe the other side hid something from them. Fortunately, whatever the situation, statute affords parties to a Colorado divorce case a remedy, via a 5 year window, in which to seek relief should hidden or undisclosed assets become known.

Initially, C.R.C.P. Rule 16.2(e)(2) requires the parties to a divorce case to voluntarily disclose the following as can relate to assets:

A “Sworn Financial Statement”
The last three years of personal (and business if applicable)
Personal financial statements Business financial statements Real estate documentation Investment account statements Retirement account statements Employment benefit statements Bank statements Income documentation Insurance documentation Continue reading

As we have earlier covered on this blog, same-sex marriages are now legal in Colorado because the United States Supreme Court decided not to hear any appeals regarding the constitutionality of same-sex marriage bans from the 10th Circuit. Now that same-sex civil marriages are recognized in Colorado, divorces are also possible, and with divorce will come child custody and visitation issues. Assuming both partners are legal parents of the child, the same standards will be used for child custody issues as are used when heterosexual couples divorce. The parents may both be legal parents of the child when the child is born into a same-sex marriage or when a non-biological or non-adoptive parent adopts his or her partner’s biological child through a second parent or stepparent adoption. The standard for child custody and visitation in that case will be the best interests of the child under C.R.S. 14-10-123.4. However, if only you or only your same-sex spouse is your child’s legal parent, you may need to bring a paternity or maternity petition in order to obtain custody and visitation when you and your spouse separate. Based on prior case law, it does not appear that Colorado child custody and visitation proceedings will be handled any differently because of the legalization of same-sex marriage. In general, it is to be expected that the Colorado courts will place the child’s best interests first and award parenting time to the parent who is not a legal parent when that parent has acted as a parent throughout the child’s life, and when there is no other biological parent whose rights would be affected. Continue reading

Samuel_D._Ehrhart,_An_international_high_noon_divorce,_1906.jpgColorado law allows a trial court to order one party to a divorce to pay for the other party’s attorney’s fees. C.R.S. 14-10-119. The court must take both parties’ financial resources into account, including both the amount available to one party and the amount needed by the other, in determining the amount of the order. The statute is silent, however, on the time period, or point in time, that the court should consider in determining an amount. The Colorado Court of Appeals recently considered this issue in a case where the trial court held separate hearings on permanent orders and attorney’s fees about six months apart. In re the Marriage of de Koning, No. 12CA2334, slip op. (Col. App., Jan. 2, 2014). The parties disagreed on which hearing date the court should use in considering the amount of financial resources.

The wife incurred about $90,000 in attorney’s fees during the divorce proceedings. The husband paid about $20,000 of that amount before the entry of permanent orders, and the wife requested that the court order him to pay the remaining amount at the permanent orders hearing. The court entered a decree dissolving the marriage, as well as permanent orders regarding the division of the marital estate, maintenance, and parental responsibilities and child support. It deferred a ruling on attorney’s fees, however, and set a hearing for six months later.

The wife served the husband with discovery requests seeking information about his personal and business financial accounts. He obtained a protective order for this information from the court, which agreed with his claim that any eventual attorney’s fee award would be based on his financial resources on the date of the permanent orders. At the fee hearing, he claimed that he should not be ordered to pay the remainder of the wife’s attorney’s fees because they each had the same amount of assets “on paper.” De Koning at 3.
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On October 6, 2014, the United States Supreme Court declined to hear cases coming from various US Circuit Courts of Appeal regarding the issue of same sex marriage and rulings finding the bans of various states on same sex marriages to be unconstitutional. One (or more) of those cases came from the 10th Circuit Court of Appeals, located in the heart of our booming metropolis, that being Denver.

From a legal analysis standpoint, by declining to hear or weigh in on those case, the US Supreme Court effectively let stand the decisions that the various state laws at issue in the Courts of Appeals cases were null and void. Colorado, including, of course Denver, is part of the 10th Circuit, which also includes Kansas, Wyoming, Oklahoma, New Mexico, and Utah. The specific rulings which strike down the laws prohibiting or curtailing same sex marriages are applicable throughout the circuit.

The intent of this post is not to weigh in on the hot button topic of same sex marriage. We are lawyers, not politicians or political pundits. Any opinion will offend one side or other of the debate. We don’t want to offend anyone. Whether same sex marriage if viewed by some as “right” and some as “wrong,” the legal fact is that the greenlight has been given for counties throughout the state to start authorizing same sex marriage, or rather not blocking such.

As same sex marriages evolve in Colorado, so shall same sex divorces. With the 2013 passing of the Civil Union bill in Colorado, Denver area family law attorneys have already seen changes to the domestic relations law legal landscape. Contrary to what some might have anticipated, those changes have not had a significant impact on the courts or us, as attorneys. In the few months since the Bill became law, we have talked to clients, or potential clients, regarding dissolution of civil unions, and have litigated civil union dissolutions. Realistically, the process for dissolving a civil union is almost identical to dissolving a marriage. There is no reason to believe that dissolution of a same sex marriage will be any different.
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Arbitration has become more and more popular in the last few years, as litigants opt to resolve their issues outside of the formal courtroom and in the more informal setting of arbitration. Although not as formal as a courtroom, the arbitrator’s decision on the legal issues in front of him or her is generally legally binding. In fact, in some cases the reviewability of an arbitrator’s decision is extremely limited.

broken-heart-1321733-m.jpgAlso, there are a few important limitations on an arbitrator’s authority to decide legal issues. The Colorado Court of Appeals recently decided a case that required the Court explain how arbitration fits into the family law context, specifically divorce.

The Facts
The facts of the case are quite simple, actually. Husband and Wife got divorced and, as a part of the divorce, Husband was to pay Wife $4 million over the course of several years. The payments were structured so that Husband would pay Wife a monthly amount for several years and then, after all marital property had been liquidated, Husband would pay Wife the remaining amount in a lump sum. The final part of the deal was that Husband was entitled to some credits, according to expenses he incurred while selling the property.
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In many Colorado divorce proceedings, the court will determine that one spouse must provide some form of support to another spouse. Often, this is because one spouse put his or her career or education on hold to care for the marital home, or because the income potential of one spouse is significantly higher than the other spouse.

family-with-baby-4-1046983-m.jpgHowever, it is important to know that even when a Colorado family court judge hands down a final order in a divorce proceeding, that order is not necessarily permanent. Almost all orders can be modified under certain circumstances, when required conditions are met. This is also true of spousal support orders.

Modifying a Spousal Support Order in Colorado
Spousal support orders, or spousal maintenance orders, can be modified in some instances. However, there is no hard and fast rule for when modification is appropriate. Instead, it is left up to the courts to determine when a modification of a spousal maintenance order is proper.
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