Articles Posted in General Family Law Knowledge

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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In the first two parts of this article, I focused on the significance of a contested Denver area divorce or custody hearing and the first procedure steps in terms of sequence and timing. In those posts, I discussed opening arguments, testimony, and what can be expected at each of those phases. This final segment will address the wrapping up of testimony, into closing arguments, and the potential for the court to rule from the bench. As indicated at the end of part two, I will also briefly address the rules of evidence as relates to testimony.

As seen in movies or on television, a contested hearing entails the presenting of evidence to the court. It will generally include the parties getting up onto the stand and testifying. It may also include other witnesses. In an Arapahoe County custody case, or any other divorce or custody case in Colorado, the hearing will be held in front of a judge, not a jury. In a family law case, the judge is ultimately going to be the one making the decision based on the facts presented as evidence. Aside from making that final ruling, the judge will also serve almost as a referee related to what can and cannot be admitted or heard, based on the rules of evidence. Throughout the hearing, the attorneys may make various objections while a witness is testifying. The primary ones will be relevance, hearsay, calls for speculation, leading the witness, or lack of foundation. For evidence or testimony to properly come in it must comport with the rules of evidence. The primary one a witness will be faced with is hearsay, which will generally entail that witness trying to testify regarding what hear or she heard someone else say. It will always be the attorney’s job to deal with evidentiary issues and to try to make sure testimony is heard. In reality some statements might never get into evidence.

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In the first part of this article, I ventured into the significance of a full blown court hearing, as opposed to a status conference. I also started discussing the beginnings of that contested Arapahoe County divorce or custody hearing. To refresh, my usage of the term “full blown” hearing equates to a contested, evidentiary hearing, in which witnesses, including the parties, will be called to give testimony. Documentary or other evidence may also be submitted to the court for consideration. At the end of such a hearing, the judge or magistrate will render a decision. The conclusion of Part 1 of this post touched on opening arguments, followed by brief discussion of testimony and who goes first. To correct, or clarify, a prior statement, in a pre-decree divorce, custody, or child support case, the “petitioner” goes first. In post-decree hearings, such as might relate to a motion to modify child custody, the “movant, meaning the party who filed the underlying motion, gets to go first, regardless of whether they are designated as the “petitioner.

Going first in a hearing can have its advantages, or pitfalls. Whether in law, business, or social settings, first impressions can have a lasting impact. Thus, it is important for both party and attorney to be ready to effectively present the case. As both parties are fair game for providing testimony on the stand, sometimes it can be advantageous to call the other party first, thereby getting the first bite at the proverbial apple by getting them to say things favorable to your side. Doing so can also potentially derail all efforts made preparing to testify, which may have been rehearsed between counsel and client. Though calling the other side right out of the gate can be an effective tactic, the norm is that the side going first will call their witnesses first and leave the other party for their own attorney to deal with.

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As I often indicate, each Denver area divorce or custody case is unique, with its own twists, turns and variables which can come to play and, potentially, have an impact on the outcome of a case.  An experienced Denver family law attorney knows how to deal with those nuances to his or her clients’ advantage, when possible. A seasoned attorney dealing with a Douglas County divorce knows that the outcome might be different from one in Jefferson County. Beyond the subjective intricacies that each case may hold, there are also basic fundamentals in family law cases which hold true, regardless of which county a case is docketed in. One of those relates to court procedure, particularly when it comes to contested hearings.

In all Denver metropolitan area divorce or custody cases, an initial status conference is required. This is an initial meeting with the court for purposes of assessing where the case is at, is headed, and what needs to be done to get there. There may also be secondary status conferences, whether in person or by telephone. In some cases, such as a contempt of court matter, there will be a perfunctory advisement hearing, which will be the first, and lesser, interaction with the court. Each of these lesser court appearances is important. That being said, none are the final hearing each person anticipates as the potential end point of his or her divorce or custody case.

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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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Part 1 of this article focused on gaps in Colorado statute related to child support. Though the law is comprehensive, it’s not perfect. Colorado family law and custody practitioners repeatedly experience situations in cases, whether divorce, custody, or otherwise, in which they say to themselves, “statute should clearly state….,” or “this gray area would be easily resolved if the legislature had only gone one step further.” I could sit in my office for hours finding various holes in our family law statutory sections, where just a little more clarity might take away some of the ambiguity that parties, lawyers, and judges face. The second part of this multi-part posting will focus on various gaps in custody and visitation laws and will also suggest potential, easy solutions to such.

1. A very common questions I’m asked is “at what age do my children get to choose who they live with or when they see the other parent?” The proper answer, under Colorado custody laws, is “there is no magical or statutory age at which kids get to decide as to custody or visitation.” In practice, most courts will generally start to give kids more autonomy around age 14. By 16 or 17, most courts will give significant weight to the child’s wishes. Regardless of age, families and children are bound by the ambiguity in Colorado law, which often leads to legal wrangling and court battles over what to do with teenagers. Pursuant to C.R.S. 14-10-129, one must technically show either physical endangerment or significant emotional impairment to a child’s development in order to change primary residential custody. What about situations in which that 16 year old come out and says, “I want to go live with mom?” Technically, if there is no physical or emotional danger at dad’s home, the change in custody should not occur. It’s time for Colorado statute to catch up to the laws of some other states. I represent clients in various states throughout the county. Many of them indicate, “well, if the child was in my state he would get to decide at age “X.” Often times I hear 14. The youngest I commonly hear is age 12, in Florida. Though a 12 year old should not be vested with deciding where to live, or what parenting time to exercise, a bright line age set forth in Colorado statute, such as 15, could cut down on significant amounts of litigation related to older teenagers. Beyond legal battles over modifying residential custody, a concrete age would also assist in initial divorce case in which there is a teenager. It would also alleviate litigation under C.R.S. 14-10-129.5 related to enforcement of parenting time orders. I’ve seen too many cases over the years in which a teenager says he or she doesn’t want to go to the other parent’s home, contrary to the court orders. These situations, sad and difficult in the first place, are often mad worse when the other parent decides to bring first parent to court for violation of the orders. Though some judges and experts recognize that the first parent cannot physically pick up that 5 foot 10 inch child and throw him into the car, some judges do not. Courts can take violations of orders seriously and such can potentially even lead to jail time. Again, a bright line rule as to age would end these battles over enforcement of visitation orders, and lighten court dockets. As one wise family law judge puts it, “a teenager is like an 800 pound gorilla and you can’t make that gorilla go where it doesn’t want to. The teenage years are crazy enough. A little clarity in statute might help take out some of the drama for all. Of course, with underdeveloped brains and raging hormones, statute would need to have caveats to full autonomy, such as might relate to substance abuse, violence, lack of academic guidance or significant mental illness in one party’s home. Absent those things, and with two good parents, a 15 year old should have a choice and parents should have clear guidance as to the law.
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As experienced family law attorneys in the Denver area, we have seen a multitude of situations over the years in divorce, custody and child support cases. Having represented more clients than easily countable, we have observed certain scenarios arise, now and then, for which there is no specific statutory remedy or answer. In other words, we sometimes find ourselves pondering or debating why the Colorado Legislature, with multiple members and input from the domestic relations bar, could leave certain aspects of statute vague or with no specific rule? As we see these types of issue arise over and over, so should other attorneys. Regardless, the gaps go unchanged. Below are some of those gaps in statute, related to child support, which are in need of bridging through additional language.

1. C.R.S. 14-10-122 is the statutory section dealing with modification of child support. C.R.S. 14-10-122 indicates that a modification of child support can be applied retroactively to either the date a motion is filed, or when an agreed upon change in custody of a child occurs. The second scenario will still ultimately require a motion. The rationale in this retroactivity is that it can take some time for parties to actually obtain a court hearing and get a change to child support change formally effectuated or ruled upon. Despite these protections afforded to the parties, there are still instances in which statute could provide more guidance. One relates to stopping child support upon that change in custody, whether agreed upon or not. We have seen cases in which the child goes from mom to dad, or vice versa, and contrary to the terms of the current custody orders . In some cases, one party may take on the custodial obligations for the child, but continues to be saddled with paying the child support obligation until such time as the matter goes to court, if at all. Realistically, as simple rule indicating that when custody changes, regardless of agreed upon or not, the duty to pay child support automatically abates until such time as a hearing occurs. With this type of a black and white rule, the party taking custody of the child is not burdened with technically having to pay the other party until such time as a court hearing, which can take months. As a matter of fairness and financial practicality, the party obtaining custody shouldn’t have to go to court for other proceedings to get his or her Colorado child support stopped. Of course this is a separate issue from whether he or she wants to receive child support. Simple language, such as “when a change in primary residential care occurs, regardless of the reason, and regardless of whether the new custodial parent seeks a modification, the obligation to pay child support shall automatically be abated until such time as a hearing is held.” This language would not eliminate the potential for factual he-said/she-said arguments. It would, however, provide immediate relief.
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An experienced Denver family law attorney knows that a critical factor in how a case could be decided, should it go to full blown litigation, or a trial, is which judge the case will be in front of. In the body of law that encompasses divorce, child support, and custody, there are certain facts that leave little room for discretion in terms of how a court might rule. This could be a situation in which all monetary figures are known in a child support calculation and the only thing to be done is to apply the statutory formula. However, there are many other areas, such as determining visitation (parenting time) or equitable division of marital property in which a judge is given a wide range of latitude to render decisions she or he feels is in the child’s best interest or is “equitable.” With the presumption that all area judges render decisions in an ethically “fair” or appropriate manner, the reality is that subjectivity in terms of how a judge views a specific issue can come into play. It’s just human nature.

With years of experience, our attorneys strive to learn about each judge and to ascertain his or her leanings on the various family law topic which might arise in a case. As such, one of the first questions I will ask a client who comes to us with a case already under way is “which courtroom is your case in?” or “what judge or magistrate do you have?” Of course, I will then let the client know my opinion on how I think a particular issue will be dealt with. Sometimes, we may get case in which we know our client will have a tougher time meeting his or her objectives due to the courtroom he or she is in, or that the case might go a completely different way if heard somewhere else. At those instances, it is not uncommon for the client to ask “can we request a new judge?” In those instances, our response will almost always be, “no.”
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Earlier this month, we posted the first part of this article, setting for the basics of what Denver area family law attorneys call “discovery.” As previously indicated, discovery is generally issued in divorce, custody, or child support cases when one side believes more information is needed. This can include a heightened request for documents, generally financial in nature, or requests for questions to be answered, whether of a child related or financial nature. Discovery in a family law case will generally entail interrogatories (questions to be answered) or requests for production of documents. Your attorney can assist you with determining whether the specific facts and circumstances of your case warrant, or necessitate, the issuance of discovery.

Some examples of when discovery might be needed would be in a situation in which the wife has handled all of the family finances or, perhaps owns a business. In such an instance the husband might be in the proverbial dark as relates to the family finances, past or present, and may be in need of further information for purposes of assessing a divorce settlement or preparing for court. Interrogatories may be a useful tool for purposes of ascertaining the other side’s position as relates to custody issues, or perhaps for purposes of boxing them into specific written answers which can be used in court. As indicated in the prior posting on this subject, when one side issues formal discovery, it is extremely likely that the other side will do the same. Set forth below are some common rules or pointers for both issuing discovery, as well as responding to it.

1. Pursuant to the Colorado Rules of Civil Procedure, discovery must be issued 63 days before a hearing. Generally, this would be the final divorce or custody hearing. In some instances, there may be interim hearings set, such as a temporary orders hearing. Discovery can be issued less than 63 days before these interim hearings, but one must be aware of that 63rd day prior to the final disposition of the case. Though courts can sometimes be flexible or lenient with deadlines in a family law case, the technical rule would be that discovery issued within that 63 days is issued improperly. When faced with improperly issued discovery, one should look at filing an objection to the request within the time frame allotted.

2. Discovery may not be issued prior to the initial status conference in any case. Pursuant to C.R.C.P. Rule 16.2, parties must first attend the mandatory touch base conference with the court prior to issuing discovery. Some counties may even issue case management orders indicating that permission must be sought from the court prior to issuing discovery. Parties should be aware of the provisions set forth in their case management orders. From time to time, we do even see attorneys issuing discovery early, or late. In those instances, and objection is also appropriate.
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In any Denver area divorce or custody case, each side is going to be required to complete and exchange regular financial disclosures pursuant to the Colorado Rules of Civil Procedure, Rule 16.2. Normal financial disclosures will include drafting what is called a “Sworn Financial Statement,” which is a document essentially setting forth a party’s income, assets, debts, and expenses. In addition to the Sworn Financial Statement, parties will also be required to provide various other documents, such as the last 3 year’s tax returns, last 3 month’s pay stubs, and current bank, credit card, insurance, retirement, and various other financial statements. The purpose behind this exchange to make sure that each party has the financial information he or she needs to make assessements as to various financial issues, whether income related to child support or alimony, or what property there is in a divorce case and how it will be divided.

The normal C.R.C.P. Rule 16.2 financial disclosures tell part of the picture, but sometimes don’t give enough information for people to make informed decisions or prepare adequately for a court hearing. As such, the Rules of Civil Procedure also authorize various other mechanisms for gathering information from the other party. Specifically, there are various rules which allow depositions, requests for admissions or inspection, interrogatories, and requests for production of documents. In general, this body of requests that can be made is called “discovery.” As Denver area divorce and family law attorneys we generally see the “discovery” issued, or received, in the form of the the latter two: interrogatories and requests for production of documents. In theory, discovery should be issued in instances when the financial disclosures just don’t tell enough, or more information is sought, such as might relate to the children or job search efforts. Other instances in which our attorneys might issue discovery might be when the other party is self employed or owns an interest in a business, or perhaps has been the one who primarily, or solely, dealt with the parties’ finances.

Discovery can be a useful tool in both a divorce or custody case. As a general rule of thumb, and keeping client funds and costs in mind, discovery should only be issued when needed. Issuing and responding to discovery bring certain additional costs and challenges. Sadly, there are attorneys out there who issue it “just because” or as a matter of course. In these instances, there is not much one can do, as each party has the right to request more information. Inevitably, when one party issues discovery, the other side will almost certainly return the favor. Though this might sound childish, the legal world can be very tit-for-tat.
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