Denver Divorce Attorney Blog

For years, we have listened to debates in the media regarding whether Colorado should, or should not, allow civil unions. The debate ended on March 21, 2013, when the Governor signed into law the Colorado Civil Unions Act, Senate Bill 13-011. Starting May 1, 2013, Colorado will allow civil unions. Under the new law, persons of the same or different gender will be able to enter into legally recognized unions. As civil unions are designed to be similar to marriage and allow the partners to such similar rights, it stands to reason that the new law will also have an impact in the area of divorce law. As a Denver family law attorney, I have started researching the subject and the coming changes, not only to educate myself, but to also prepare our firm to start handling cases involving the break up of civil unions. Just like marriages, people come together and grow apart. Just like in marriages, people fight. Now, just like marriages, there will be a legal process to get people through those break ups in an orderly, and legal, fashion.

The new Act, which will primarily be contained in Colorado Revised Statues, Title 14, Article 15, is full of new definitions, rules, and procedures. The Act contains language defining a civil union, indicating who can legally enter into one, setting forth the legal process for effectuating a union, and setting forth how to get out of one. Divorce law is generally set forth in C.R.S. Title 14, Article 10. Commencing May 1, 2013, Article 10 will now contain Section 106.5, which specifically states that the procedure for dissolving a civil union will be the same as the procedure for seeking a Colorado divorce.

Likewise, the new statute indicates that partners to a civil union will have the same rights as parties in a divorce case, meaning they will now have a family oriented forum to deal with issues of alimony(maintenance), property division, debt division, and other issues people will generally fight over in a divorce. Prior to the Act, people in a non-marriage situation, whether same sex or not, have been forced to litigate dividing up property in a regular civil court setting; and there was no right to alimony. Now they will be afforded a forum with more of a family law flare.

Once the law goes into effect, people will need to apply for a civil union license and register it in their county of abode. Once done, the State of Colorado will recognize the union and confer rights to the partners that might otherwise not be conferred in a boyfriend-girlfriend, girlfriend-girfriend, or boyfriend-boyfriend relationship. For Denver area divorce lawyers, this will certainly mean a new area of litigation. At the same time, those attorneys will already be fully aware of the substantive body of law which will apply to the dissolution of a civil union. The Act does contain language indicating that a marriage is still between a man and a woman. Rights and rules will be gender blind.

Under current law, same sex couples, just as couples of differing genders, can already fight for their rights regarding child support, custody, visitation, etc. in the domestic relations courts and under the domestic relations laws. As such, my immediate perception is that the law will likely have little impact on those types of issues. At the same time, one cannot anticipate all potential issues which may arise. Without much language on these subjects contained in the Act, as relates specifically to family law, the courts will likely be left to clean up any ambiguities or ommisions made by the legislature. Time will tell.

Continue reading "DENVER DIVORCE AND CIVIL UNIONS " »

In February 2013, we published the first segment of this posting regarding potential changes coming to Colorado divorce law and the issue of alimony, more properly termed "maintenance." The rumors still persist among Denver area family law attorneys, that our alimony statutes will be changing, commencing 2014.

Part 1 of this post discussed changes related to the creating of a guideline table, similar to child support statutes, setting forth a framework for judges to look at related to lengths of time that an alimony award should run and percentage amounts to be received by the payee spouse. The posting also dicussed another potential change coming to the Colorado maintenance statute related to termination or suspension of maintenance based on the recipient co-habitating. In this Part 2 posting, the remaining significant, potential statutory changes to be discussed stemming from House Bill 13-1058 include definitions of income, provisions for the protection of persons not represented by an attorney, and a rebuttable presumption that retirement at "full retirment age" is a good faith basis, or reason, to modify a maintenance award.

Under the current alimony statute, C.R.S. 14-10-114, there is no concrete definition of income. In part, the current maintenance statute has deferred to C.R.S. 14-10-115 for such definition. If changed, the alimony statute will now have a definitive list of what is income for maintenance purposes, including language related to reductions for child support obligations, the ability for the court to impute income to someone, and definitions of volutary unemployment or under-employment. Like the child support statute, the list defining income is lengthy, and can include most sources, such as income from employment, self employment, retirement or pension pay, interest, dividends, Social Security payments, workmen's compensation, monetary gifts, lottery winnings and more. As practicing Colorado divorce lawyers, we have largely, though such has been somewhat unwritten, deferred to the child support statute for guidance as to what a court would, or might, consider income for alimony purposes anyway. That being said, it would now be set forth in black and white, for all to see, with little grey areas to argue over.

The next potential change to the Colorado maintenance statute relates to built in protections for a person not represented by an attorney. Currently, the courts have had the ability to step in and assert their input regarding whether an award of alimony, or the waiver of alimony, is fair. Cases in which a court will actually undo an agreement without one of the parties raising the issue are few and far between. I cannot say that I have ever actually seen a court disturb a maintenance agreement. Furthermore, when parties are waiving the right to receive maintenance, they are generally setting forth, whether in writing or orally in court, that they are freely and voluntarily making the waiver. If the House Bill is passed, courts will not be allowed to approve an agreement waiving maintenance or an agreement regarding maintenance which does not follow the guidelines, unless the unrepresented party has specifically indicated that he or she has been made aware of the guidelines. In practice, this will mean that attorneys will now need to make sure that they provide the other side, if unrepresented, with a copy of the guidelines prior to having them sign an agreement. In theory, if there are two parties to a divorce, both of whom have no attorney, they will need to do the same for the courts to approve any agreement. In essence, this creates a safeguard for people without attorneys. It also creates one more step that must be taken to get your divorce completed.

Continue reading "COLORADO ALIMONY AND DIVORCE: POTENTIAL 2014 CHANGES (Part 2) " »

As experienced divorce attorneys in Denver, the lawyers at Plog & Stein, P.C, have seen, over the years, various changes to the law related to many aspects of both divorce and custody statute. From time to time, the state legislature, with some input from the bar association (not always listened to), decides to make changes to the existing body of work that encompasses what I will call the family law statutes. This has included simple changes, such as adjusted child support guideline amounts to reflect changes in economic trends, or changes to the timing of the filing of certain pleadings or documents in a court case.

However, from time to time, there are also sweeping, and radical changes which ultimately get enacted into law. Pending before the legislature is a bill, which if passed, stands to radically change the way courts assess maintenance, or alimony, in Colorado divorce cases. Again, at this stage, it is only a proposal. That being said, the rumors among learned and seasoned family law attorneys, and some judges, is that the bill will likely be passed, with the new provisions taking effect for Colorado divorce cases filed after January 1, 2014. The specific bill is House Bill 13-1058, and must still meet both state senate and the Governor's approval before becoming law. Again, the prevailing rumor right now is that this will happen. The question then becomes how does this affect you, the litigant in a Colorado divorce?

Alimony, or maintenance, stems from C.R.S. 14-10-114 and is essentially court ordered spousal support to be paid from one spouse to another. Factors going into an award of maintenance include incomes, financial needs, length of the marriage, time for one spouse to attain financial self sufficiency, etc. Maintenance in divorce cases has always been somewhat of a gray area or subject. Unlike child support, there has been no guideline or formula. Thus, how much maintenance and for how long has always been up to a judge's discretion. Discretion can vary from judge to judge and court to court.

This posting is not intended to weigh in on whether the proposed changes are good or bad, but rather to identify the significant proposals and potential effects upon the practice of divorce and alimony law under Colorado statute. From a cursory reading of the Bill, it appears that the significant changes coming are as follows:

1. GUIDELINE AMOUNT: As with child support, the proposed new legislation sets forth a formula related to how much alimony should be paid, and a time table for suggested appropriate lengths for the payment of it. A cursory read of the bill seems to indicate that the temporary maintenance formula set forth in C.R.S. 14-10-115 regarding 40% of the higher earner's income minus 50% of the lower earner's income will be applied to awarding maintenance at a final or "permanent orders" hearing. However, unlike the child support statute, the Bill indicates that the guidelines are not mandatory and are not a "presumption." At the same time, the Bill seems to indicate that a court must consider the guidelines and set forth specific reasons for its ruling should it differ from such. Language set forth in the draft indicates that primary purposes of the proposed guidelines are to enhance "predicatability" in alimony cases, which in theory will then promote settlement.

Continue reading "COLORADO ALIMONY AND DIVORCE: POTENTIAL 2014 CHANGES (Part 1) " »

No one rushes to something chaotic and potentially painful. Divorce can be just that. The decision to be made is not one to be made with haste, but rather with thoughtfulness and strategy in mind. The Denver divorce attorneys at Plog & Stein, P.C., are ready to assist you in assessing the right time to get your divorce case filed. Each case is different and each set of circumstances can lead the conclusion of whether or not the time to start the divorce process is now. As part of the on-going continuation of the article or posting on the subject, below are more scenarios related to the the timing of filing your Colorado divorce.

15. My employer may transfer me to Minnesota and my wife wants to stay here with kids. WAIT

The answer of "wait" in this scenario primarily relates to the children. The uncertainty that comes with divorce can bring great emotional and financial strain on anyone. Likewise, a move to another state also comes with its own set of challenges, whether related to finding a new home, new schools, finances in general, or otherwise. It would make no sense to file for divorce only to find out a few weeks or months later that you are definitely being transferred to Minnesota. Filing for divorce in Colorado will start the litigation process, which will include making decisions regarding visitation, custody, or perhaps sale of the marital home. Thousands of dollars could be invested in the process trying to arrive at a resolution, only to find out shortly thereafter that things have changed. For example, a visitation and custody schedule could be reached which will become moot the minute you leave for Minnesota. Likewise, you may come to agreements or reached orders related to who will keep the marital home, sale of the home, etc. which could become impractical if one party moves to another state. Furthermore, one could find himself or herself in a situation in which he or she is living in one state and fighting a legal battle in another. Another facet of this scenario and answer relates to the notion that the wife may change her mind and decide she will come, with the children, to Minnesota. If everyone moves together, Minnesota would ultimately become the proper state to deal with the divorce issues, as well as the child issues. If one elects to file, then move, the children and the case will likely remain in Colorado. In essence, it is better to have clarity in your personal life before going into the unknown that comes with a divorce case. The lack of clarity can ultimately have an impact on the outcome of that case.

16. Our house is on the market and we have a couple of offers. WAIT

A common aspect of any divorce case can be what to do with the marital property, including the home. It is not uncommon for people to argue over this issue in terms of whether one party will keep the home, will the home be sold, and how, if sold, the money will be divided. With the home on the market, it would be more prudent to wait until it is sold before filing for the divorce. If a divorce is filed and then the home is sold, the proceeds could be tied up for quite some time without either side really being able to utilize the funds, absent an agreement. Pursuant to C.R.S. 14-10-107, property may not be disposed of while the divorce case is pending. Better to let the home sale go through, discuss how the funds will be allocated or divided, thereby potentially removing any legal argument or battle over division or use of the proceeds. Additionally, if the home is on the market and the divorce is filed, one party could be ordered to leave by the court within a few weeks of the case commencing. In that instance, one party could either be left holding the proverbial bag in terms of paying the mortgage on his or her own. Conversely, one party could be out of the home, yet still ordered to pay on the mortgage. Generally, housing is going to be the largest monthly cost that a party in a divorce case will pay. Why not get the issues related to the marital home, including division of any proceeds, resolved prior to giving the courts power over the issue?

Continue reading "THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (Round 5) " »

Thanksgiving has come and gone and now we are approaching the winter holidays, including Christmas and Hannukah. The holidays are wonderful times of the year for families and especially children. These upcoming days can be particularly stressful for couples contemplating divorce in the New Year, while remembering happier times.

Putting off filing for divorce until after the holidays is quite common. However, do not allow your sadness and tension to put a damper on the excitement for your children. Here are a few tips on how to make it through the end of the year.

Try and make this holiday season extra special. Perhaps being together with family during this joyous time of the year will allow you and your spouse to reconsider the impending divorce. It might be a time to sit down and consider counseling or mediation to resolve some of the issues prompting your decisions.

Most importantly, focus on your children. They are about to be impacted by decisions that you and your spouse are about to make, although they have had no input in the decision process. Allowing them to see that you both love them and are able to communicate, without fighting, will help them to accept the separation once it becomes a reality.

Go out and buy holiday decorations and decorate the house together. Go shopping and buy some of the items on the children's wish list, including something for yourself. Just remember not to go overboard. The last thing you want is to have large credit card debt added to the stress of going forward with the divorce at the beginning of the year.

If you and your spouse have joint credit cards or bank accounts, budgeting during the holidays is important so that one spouse doesn't attempt to outspend the other. It can also be a good time to begin obtaining separate banking accounts and credit cards to make the financial transition easier later.

Try doing things that are inexpensive. Consider going to your children's holiday festival at school, riding around and looking at holiday lights and displays, lending a hand to an elderly friend or relative and attending a holiday service at a place of worship of your choice. Create fun traditions that can be transitioned into your new life after the divorce is final.

The timing of filing for a divorce is never easy and going through the holidays with this on your mind can be overwhelming. Embracing the holiday traditions and focusing on making this a special time for your children can help you to successfully navigate the season.

Continue reading "Making It Through The Holidays While Contemplating Divorce " »

After practicing as a divorce attorney in Denver for over a decade, I have come to determine that there is no one "right time" to file for divorce. The timing for getting your divorce case started can depend on a wide array of factors. These factors can be financial, logistical, child related, or otherwise. Thought there is no one right time, there are certainly pivotal factors or events that should be considered when determing the time is right to end your marriage. Continuing with our April 2012 posting regarding the topic of filing your divorce and when, set forth below are more of the promised answers on the subject to consider. No case or set of facts is exactly the same, as each family is different. At the same time, there are some instances in which that right moment comes along.

12. I just cashed out my $50,000 stock account. WAIT

I answered this question with "wait" for various reasons related to disposition of the funds and the fact that they may be largely unusable once a Colorado divorce case is filed and while it is pending. Specifically, C.R.S. 14-10-107 sets forth an injunction which prohibits essentially the disposing or spending of assets such as this while the case is pending, but for the necessities of life. The stock account was definitely cashed out for a reason. If the intent in this instance was to use the funds on a vacation, for the purchase of a vehicle, to pay for your child's college, or for some other personal reason, holding off on the filing of the divorce will allow the person to make those expenditures without issue. Once the case is filed, one can presume it is likely that the court will divide the $50,000 equally as a final resolution, which could be months or more down the road, depending on which county the case is in. If significant purchases are made prior to the divorce being filed, the property purchased would still be subject to division. Nonetheless the account holder has at least had a chance to spend his or her stock proceeds as he or she sees fit. Furthermore, let's say those proceeds are used on a vacation or for your child's tuition. You can't really go back and divide those funds already expended later. Certainly, any remaining funds would likely be subject to division, but the account holder, by waiting a while to file for divorce, will at least have had options in terms of deciding how to spend those proceeds prior to filing the divorce case.

13. We have been separated for 6 months and my husband says he wants to move back home. FILE

In this situation, the parties have been physically separated for quite some time. At the same time, the presumption is that both parties own the home. As such, one would think that legally the husband can just move back home as he sees fit. In reality, he can, unless action is taken. As mentioned above, C.R.S. 14-10-107 sets forth an injunction which takes effect when a divorce case is filed, proscribing or prohibiting certain actions on the part of either party. One of the major tenets of the injunction relates to disturbing the peace of the other party. Most Denver area divorce courts ascribe to the theory that once the other party is served, he or she cannot just come and go as he or she pleases from the marital home if he or she has already moved out. In essence, most courts will view such to be a violation of the C.R.S. 14-10-107 injunction related to disturbing the peace of the other party. To have the legal power to keep your spouse from moving back in, coming and going as he or she pleases, etc., you must file for divorce. People separate for a reason and no one needs the acrimony and fighting that can affect their daily lives, or spill over onto the children. In addition to remedies that can be sought in your divorce case, such as contempt of court, some law enforcement entities will actually view someone coming into the marital home, uninvited, after separation and filing of a divorce case, as criminal trespass. The hope will always be that things never go that far. Sometimes they do. In essence, if you want peace in your home and the security of knowing your soon to be ex-spouse cannot just come and go, get your case filed.

Continue reading "THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 4) " »

The question of whether to file for divorce is not one easily answered. As a divorce attorney in Denver, I often meet with people pondering divorce, yet not quite sure whether they really want to go through with it. Deciding whether to completely alter your life, and perhaps that of your children, is a decision that should be weighed seriously. I, as well as all of the attorneys at Plog & Stein, am never one to push a person on the verge of making that decision one way or the other. It is not an attorney's place to make that life altering decision. It is an attorney's place to advise as to ramifications, outcomes, the legal process, etc. related to that divorce. A key factor in determining whether it's time to file for divorce, beyond the emotional notions of whether a marriage is truly over, relates to timing and the facts and circumstances currently at hand.

Below are more questions and answers stemming from my April 2012 posting regarding the right time to file for divorce in Colorado. Each case is different, yet some circumstances may dictate that it's time to file in most. Others may lead to the conclusion that it might make sense to wait. The answers set forth below are general in nature, but may assist those sitting on the proverbial fence.

8. Our oldest child is 18 and turns 19 in 10 months. WAIT

I answered this question with "wait" from the perspective of a married person, in a still in tact relationship, who would likely end up paying child support. As the child in this fact pattern is no longer really a child for Colorado custody purposes, but rather an 18 year old adult, the only relevant issue is child support. Presuming the person asking is the one who will likely be paying, it would be more prudent to hold off on filing until the child turns 19, which is the age that child support generally stops. If possible to hold off until age 19, there will be one less issue to litigate and one less potential strain on cash flow. Depending upon which county the case is filed in, the child could turn 19 by the time the case is completed. It makes no sense to spend money litigating an issue that will soon go away as the child emancipates.

I could also answer this question from the perspective of the payee, in that the child's financial needs may be better met with the family in tact. As Colorado child support is calculated based on a statutory formula and the legislature's idea of what is needed monetarily to raise a child, one might find himself or herself receiving less in child support than what he or she is accustomed to spending on the child. Of course, if there are circumstances, such as domestic abuse or other extreme issues, which make immediate filing a necessity, then file right away. Absent those, it might make sense to hold off until the last child is truly a child no more.

9. My husband just got pulled over for DUI with the kids in the car. FILE

Driving drunk with children in the car is not only a safety issue, it also becomes a legal issue with ramifications for both spouses. If contemplating divorce and your spouse is pulled over for DUI, the time is right to file. Many Denver area custody courts take DUI seriously, whether kids are in the car or not. A DUI alone can potentially tip the scales in a Denver visitation or custody battle. Alcohol is an intoxicating substance, just as with other drugs. The general presumption is that someone with a recent DUI has a substance abuse problem which may make them a potential danger to the children. The concern a court will have regarding the safety of the driver with the children grows exponentially when there are children in the car. At risk of sounding mercenary, from an attorney's perspective, this is the type of situation that can be a game changer in a custody battle. From an attorney's perspective, when facts arise which can change the outcome of a case, it is best to seize the day and act upon them. Setting aside the legal aspects of this scenario, the reality is that a parent who drives drunk with the children is a danger. As such, they should be monitored. Additionally, driving drunk with the children can often lead to a criminal charge of child abuse, and potential involvement with your county's social services team. In such instances, both parents may be looked at. Filing immediately may take any scrutiny off of you, leaving it solely placed on the deserving party, your soon to be ex.

Continue reading "THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 3) " »

In April 2012, I started a multi-part blog posting regarding the right time to file your divorce case in Colorado. As a busy custody and divorce lawyer in Denver, the summer has flown by without affording me time to continue providing the rationale for the answers provided. After many battles regarding custody, visitation, modifications, alimony, and more, I am now in the position of having some time to get back to writing, with the hope of providing more useful Colorado family law information for those who need to know. Below is a continuation of the answers to the original questions posed, starting with number 5:

5. We are in the process of filing for bankruptcy. WAIT

I answered this question "wait" for various reasons, both procedural and substantive. Technically, pursuant to the US Bankruptcy Code and the Supremacy Clause of the US Constitution, a bankruptcy case and federal law supersede state law. Once a bankruptcy case is filed, there is an automatic stay issued, which, in essence, technically requires that the financial aspects of a Denver divorce case are "stayed" or put on hold until the bankruptcy case is resolved. Though we have seen many bankruptcies intercede in divorce cases, it is rare to actually see the stay raised as an issue, or enforced. Nonetheless, technically, it could stall your divorce.

Aside from the automatic stay, which could delay your divorce, there are certain basic bankruptcy premises which can affect a divorce case, and vice versa. As a general premise, orders entered in a family law case related to Colorado child support or alimony are non-dischargeable, meaning there is no way to get around those orders. Additionally, orders stemming from a divorce case related to division of property or allocation of debt are also generally non-dischargeable in bankruptcy. As such, it makes no sense to spend money and time litigating your divorce case, including property and debt issues, if you know bankruptcy is on the horizon. Rather, it is more efficient and practical to get any issues related to separate and marital debt locked in and resolved at the federal level first. The divorce cannot undo the bankruptcy court outcome. One must keep in mind that the bankruptcy can affect property too, such as might related to a jointly financed home or a car, or even who gets what and the issue of handing it over. Once your bankruptcy is done, the ground rules are more clear in your divorce case.

6. My husband is threatening to take the kids to Florida and not come back. FILE

In this scenario, I indicated to "file." This should be done immediately. A Denver custody attorney should know that whether in a divorce or custody case, there is an automatic injunction in place which precludes the parties from taking the children out of the State of Colorado while the case is pending, without permission from the other or from the court. In a divorce case, this injuction is set forth in C.R.S. 14-10-107. In a custody case, the injunction stems from C.R.S. 14-10-123. The injunction set forth in solely custody cases was only added in the last few years. Until then, attorneys sat in frustration as they watched people in custody cases start out with less protection than those in a divorce matter. Fortunately, our legislature got wise to the gap and things changed.

Should your spouse threaten that he or she is leaving Colorado, to Florida or wherever else, you can legally stop him or her by virtue of getting your divorce case filed and getting him or her served. The statutory injunction will be set forth prominently in both the divorce petition and the summons. Once served, there will be no legally valid excuse for just taking the kids and going. In essence, they are legally blocked from taking the children pursuant to C.R.S. 14-10-107. Until such time as a case is filed and both parties are served, there are no black-and-white rules in terms of the children, meaning neither party is presumed to have an automatic right to custody, to determine where the kids will be, etc. Furthermore, assuming you get them served, there are expanded legal remedies available to you to get the children back and courts will take a violation of the injunction very seriously. As such, it will be easier to get emergency relief should your spouse elect to take the children on a permanent vacation elsewhere in the country. As the old saying goes, "a pound of prevention is worth more than a ton of cure." Therefore, you should file right away.

Continue reading "THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 2) " »

At the end of April, I posted an article regarding the timing of filing your Colorado divorce case. Though I had strived to start answering questions sooner, May slipped away from me, with my children's school ending, vacations, and the busy pace that comes with being a Denver divorce attorney.

As we move into June, I am now refreshed, focused, and back in the literary saddle, ready to continue informing my readers as to all aspects of Colorado custody, divorce, and child support law. Below are what I will call "Round 1" of the answers and explanations related to the questions posed in my last posting.

As each divorce and custody lawyer in Denver has his or her own opinion, my answers and explanations are subjective in nature. Furthermore, there is no "right" or "wrong" answer and there are many differing factual variables which, in a real life divorce setting, could change the answer or explanation set forth below.

1. My husband is the primary bread winner and just lost his job. WAIT.

I answered this question with "wait" based on concerns regarding income and the assessment of alimony (maintenance) and child support. Contested Denver area divorce cases can take anywhere between 4 months and 2 years, depending on which county your case is in. That certainly would give the husband in this scenario plenty of time to find a job. C.R.S. 14-10-115, and case law interpreting such, indicates that you look to a person's employment or income potential. At the same time, the court is not going to automatically use the husband's prior income for purposes of assessing child support or alimony. The wife needs to wait a while to see what shakes out with the job search. At a "temporary orders" hearing, the court is going to look at the current financial status quo when assessing financial orders to govern while the case is pending. Likewise, if husband is still unemployed at the final or "permanent orders" hearing, this will likley affect the outcome on the issue of alimony, including potentially a claim for such against wife if she works and huband does not. A little patience is needed in this scenario, as no job for your soon to be ex spouse can either leave you receiving less, or even potentially paying more.

2. I am the primary bread winner and got laid off a couple of months ago. My husband works. FILE

In essence, the answer of "file" to this question is almost the reverse of the answer to Question #1 above. If you have been the primary breadwinner and the one who will likely be bearing the financial burden of supporting the other party, it is better for you to file your Denver divorce while you are in a lesser financial position, thereby making it less likely for the court to ding you financially in a battle over alimony, child support, or attorney fees. You must keep in mind that the court will still, of course, be looking at what efforts you make, or have made, to find similar employment. Thus, the job loss is not a free pass, but could mitigate your damages in the sense of what you might ultimately be paying your spouse.

Continue reading "THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 1) " »

As Colorado divorce and custody lawyers, we hear all sorts of questions. Some require a simple answer. Others require an in-depth analysis. The question of "when is the right time to file for divorce?" falls into the latter category. Realistically, there is no one black-or-white, right-or-wrong answer. Below, I will give some examples of situations with a simple "file" or "wait" answer.

When to file, from a divorce attorney in Denver's perspective, should optimally be a strategic decision. Sometimes, sadly, it may need to be a decision based upon safety concerns. With divorce being such an emotionally charged time, people often times decide to file simply because they cannot stand one more minute being married to their spouse. In those cases "NOW" will always be the right answer to that person.

The twenty five answers below are brief, yet arrived at after deliberation. Each question is answered as if the question posed is the only issue present in the fact pattern. Each question is asked based on the presumption that the asker wants a divorce. Consideration of each question and answer has been given based on my opinion, and the law, related to custody, visitation, child support, alimony, property division, and debt.

Over the next 2 or 3 blog postings, I will attempt to give a well reasoned analysis as to how I arrived at each answer. Remember, in the Colorado custody and divorce world, the law and logic do not alway go hand in hand.

1. My husband is the primary bread winner and just lost his job. WAIT

2. I am the primary bread winner and got laid off a couple of months ago. My husband works. FILE

3. My husband has hit me and threatened to kick me out of the house. FILE (now)

4. My wife makes $150,000 per year and is threatening to quit her job. FILE

5. We are in the process of filing for bankruptcy. WAIT

6. My husband is threatening to take the kids to Florida and not come back. FILE

7. My wife left with the kids last week and is in Arizona. FILE

8. Our oldest child is 18 and turns 19 in 10 months. WAIT

9. My husband just got pulled over for DUI with the kids in the car. FILE

10. I just got pulled over for DUI with kids in the car. WAIT

11. My I just discovered my wife cashed out her $100,000 401K. FILE

12. I just cashed out my $50,000 stock account. WAIT

13. We have been separated for 6 months and my husband said he wants to move back home. FILE

14. My wife just moved out of town and left the kids with me. FILE

Continue reading "When Is The Right Time To File My Colorado Divorce? " »

Though not generally common, every so often, I will be presented with a Denver area divorce case in which the parties have entered into a pre-nuptial agreement prior to getting married. With the ever changing landscape of marriage and divorce, people are getting married at a later age. They are getting remarried with the taste of a nasty divorce fresh in their mouths. They are going into marriage with the knowledge that roughly 1 in every 2 marriages end in divorce. Older people marrying have likely already accumulated some assets or wealth prior to exchanging vows. People married once before have already learned the ins-and-outs of property division and how assets are viewed by Colorado divorce courts. In these instances, people ask, "how can I protect myself and my property in the event of a future divorce?" One answer they arrive at is a pre-nuptial agreement. Assuming the potential new husband or wife finds the courage to raise the issue with his or her significant other, a pre-nuptial agreement can be an effective tool for protecting one's income and assets. Of course, as with any legal issue, there are rules and pitfalls that must be followed or avoided to make sure that agreement will hold water when the time comes to divorce. Hopefully, that time will not come, but one never knows.

In Colorado, pre-nuptial agreements are governed by the Colorado Marital Agreement Act, C.R.S. 14-2-301, et. Seq. Most pre-nuptial agreements primarily deal with issues regarding property and support. Property acquired during the marriage is generally going to be viewed as marital and subject to division in a divorce. Propery owned before the marriage is generally going to be viewed as separate. However, increases in value during the marriage will generally be viewed as marital and subject to division in a divorce. These are the most common issues for which people seek a pre-nuptial agreement, protection of their assets. The other major area in which people seek protection relates to alimony, or more properly, "maintenance." C.R.S. 14-2-304 sets forth the matters which people can "contract" to in a pre-nuptial agreement. Yes, the term "contract" is used, as that is how a court will generally view such an agreement.

C.R.S. 14-2-304 also sets forth other issues that can be dealt with in a pre-nuptial agreement, such as matters related to wills and inheritance, matters related to attorney fees, matters related to choice of law in terms of which state's laws will govern interpretation of the agreement, matters concerning your income and property obtained with it, and basically any other issue which can be agreed to, so long as such an agreement does not violate "public policy."

Under the CMAA, pre-nuptial agreements are deemed to be essentially enforceable contracts, so long as they are drafted in an appropriate fashion. C.R.S. 14-2-307 sets forth certain rules regarding enforceability. A pre-nuptial agreement is not enforceable if is was not entered into "voluntarily." It may also be deemed unenforceable if there was not a fair and reasonable disclosure of property and debt prior to the agreement being signed. Ensuring that an agreement will be upheld will be discussed further below. Divorce attorneys in Denver will be, or should be, aware of these statutory provisions, whether drafting an agreement or litigating the issue of enforceability.

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After a trying week dealing with the fact that an extremely close family member had been the victim of identity theft and bank fraud, I got to thinking about the potential for vulnerabiltiy of parties to a Denver divorce in terms of personal information, whether financial or otherwise. First, my story. While out of town in late February, a family member received an e-mail from a major national bank regarding her account and a potential security breach leading stoppage of her ability to access her accounts on-line. The e-mail came to her smart phone. Of course, all that needed to be done was simply clicking on a tab and on-line access would be restored. The e-mail had a flawless bank logo on the top. The tab looked real, unlike the code links we all get from time to time on spam e-mails. Of course she clicked on the tab.

Fast forwarding to this week, a call from the bank determined that multiple personal savings and checking accounts had been compromised. Several thousand dollars had been stolen. The theft started out with someone making transactions under $1, to test out the information gained through the scam e-mail and accessing the account information contained on the smart phone. In the end, multiple account were closed, new security measures were put into place, etc. This included putting a stop on all transaction coming from Western Union, the entity which ultimately accepted the scam transactions from her account. I was able to ultimately trace the theft to some pathetic cyber criminal in Lithuania named Ebi Crisofaris @ zebra.it. Had more money been taken, I just might consider hopping on a plane to Lithuania. Instead, I do the civilized thing a divorce attorney in Denver should do. I write.

Back to divorce and security of your personal information. In most divorces, the parties have been linked for years. They have shared all aspects of their lives, including social security numbers, bank information, passwords, etc. The sharing is wonderful when people are together and in love. However, with any divorce, there is potential for acrimony, anger, and the risk of a soon-to-be ex-spouse behaving badly. With any divorce, a person's personal information can be at risk.

Perhaps the most important numerical piece of data each of us holds is our social security number. As most spouses know each other's, there is little one can do to conceal their social security number. I have seen instances in which one party seeks to open up bank or credit accounts using the other's social security number, whether before or after the case is filed. This is, or should be, criminal, as your credit is yours and the seeking of such is a right germane to you. If you determine your soon-to-be ex, or ex, has gained credit or is trying to do so without your approval, you should contact local law enforcement. In this day and age, one need only get onto the internet, armed with a birthdate and social security number, to gain a credit card. No signature, no picture ID.

Fortunately, the Colorado legislature and judiciary have gotten wise to the need to protect social security numbers. In the olden days, one might be required to report a social security number, or their kids', on a divorce petition, a sworn financial statement, or a support order. Fortunately, this has changed. Now one need only provide social security numbers on one document, a "case information sheet," which gets filed with the initial petition. Social security numbers are also still put into wage garnishments for support. Divorce documents are potentially public record, some being accessible on the internet. The less instances of your social security number being made public, the better.

Beyond the filing of court pleadings, another area in which your Denver divorce lawyer might ask you to provide sensitive information relates to financial disclosures. As part of your divorce case, you will be required to provide a sworn financial statement, tax returns and W-2's, bank statements, credit card statements, and more. There is really nothing you can do to protect information related to joint bank or credit card accounts, or joint tax returns. The other party already had this information. However, you certainly have the ability to protect new accounts. You also have the ability to protect information related to new spouses, such as their social security number listed on a joint tax return, let's say in a post-decree child support modification setting. Additionally, you may find yourself in a custody situation in which the other parent has never had your personal identification or financial information. Again, there are things you can do initially to potentially limit what they get.

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Today is February 14th,Valentine's Day, a largely manufactured holiday leading to massive financial benefits for the card, flower, candy, and restaurant industries. Every man and woman in a relationship, or most, feel the pressures of making sure gifts and sentiments of love are exchanged. Attorneys are no different. We have all heard countless lawyer jokes such as, "What do you call 50 lawyers at the bottom of the ocean? A good start." These jokes likely flow from the perception that attorneys are cold, cut throat, heartless people. Some are. However, some of us still have hearts. Though our blog is generally devoted to legal issues revolving around custody or divorce in Denver, I will devote this posting to Valentine's Day, with the call to all readers to stay together, if you can.

Over the years, I have seen countless people who come to the Denver family law attorneys at Plog & Stein at the end of their relationships. I often ponder why those relationships are ending? I also often ponder gathering statistical data on the subject for purposes of determining just what leads people to divorce. In reality, I am too busy to undertake such an endeavor. From a non-scientific standpoint, I have resolved that beyond cheating, financial issues, selfishness, or the the more tragic reasons such as domestic or substance abuse, most people split up because they just simply grow apart.

Going back to Valentine's Day, the manufactured holiday is all based on love. Every card or box of candy has a heart on it, the universal symbol of love and affection. Though it may sound sappy or romantic, I have deduced that the love once known in a relationship slips away, and the rest flows from there. Practicing Colorado divorce law takes a certain stomach. All day, an attorney is faced with sad stories of break-ups, financial strife, and people just plain treating each other badly. One benefit that flows from these observations is that I have learned what-not-to-do in a relationshp. By this I mean that I see all kinds of examples of behaviors that can lead to divorce. I then strive to do the opposite.

By all means, if there is infidelity, domestic violence, cruelty, child abuse, insurmountable substance abuse, or intentional/foolish financial mismanagement to the point of ruin for your children, there is no reason to stay together. Absent those things, there is always the opportunity to try. The institution of marriage is not just some light agreement entered into by two people for convenience, or based on a whim. Marriage is a commitment and the cliche vow goes, "til death do us part." People seem to have forgotten this ending. When things get a little rough, or something else catches their eye, too many people view divorce as the first option. We are not in junior high, changing boyfriends or girlfriends every other week. Marriage is supposed to be for life. I believe that each of us, internally, has the strength and fortitude to try. It may not be easy. The road may get rough. But in the end, if you make that commitment to your marriage, you won't have to come see us.

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While browsing the internet the other morning, I came across an article concerning the issue of "no-fault" divorce and the State of New York. After finishing the article, I started pondering what life would be like, in a legal and real world sense for Denver divorce attorneys, and the general public, if Colorado were not a "no-fault" state? I can only imagine the extra layer(s) of litigation that would ensue if grounds for a divorce had to be proven. It is not uncommon for people to come to me still believing that in Colorado they must show grounds, or justify the reasoning, as to why a divorce should be granted. Generally, in Colorado, a party need only indicate that the marriage is irretrievably broken, with no chance of reconciliation, for a divorce to be granted.

Going back to the specific article, as of January, 2012, New York granted its first contested no-fault divorce. Though laws in New York were changed in 2010 to allow for no-fault contested divorces, the first one was evidently not completed until early 2012. Sadly, the specific article related to a 79 year old woman seeking to end her 56 year marriage to her husband. On the other hand, she, or they, may have endured 56 years of sadness and fighting, forced to stay together because their circumstances did not fit into the confines of what New York statute considered legitimate reasons for divorce.

We have all seen movies, particularly older ones, in which a divorce court scene may be filled with legal debate or litigation over issues such as infidelity, cruelty,abandonment, spousal abuse, loss of affection, bigamy, or whatever other reason needing to be established for a divorce to be granted. This is no longer the case, in Colorado, and elsewhere. No-fault divorce statutes were first enacted in California in 1970. Within a little over a decade, all but two states had no-fault divorce statutes on the books, including Colorado. As a result, divorce rates throughout the nation have risen to roughly 50%. There are many arguments from both sides of the aisle as to why there should or should not be no-fault divorce. Though I practice divorce law in Colorado, I do not believe divorce is a good thing people should rush into. At the same time, I do not believe people should be forced to stay in a relationship, or tied together financially, when the love and happiness they once knew are gone, and never coming back. Beyond the increase in the divorce rate of the country, there have been other studies showing some of the positive benefits of no-fault divorce.

Specifically, a 2004 university study regarding the issue of no-fault divorce and effects thereof indicated that in states that had adopted no-fault divorce laws, there were significant decreases in suicide rates for women, rates of domestic violence, and rates of homicide by an intimate partner. These facts alone should be a basis for no-fault divorce laws. Though the intent of this posting is not to take a position on such laws, one can logically discern a benefit. When people, particularly women, are forced to stay in an abusive marriage because the law either does not provide them an out or they are unable to prove that the abuse is occuring, the likelihood of abuse or trapped helplessness would logically go up. As suggested in the study, when the abuser knows the law will allow the other spouse an out without proving grounds, he or she may think twice about committing, or continuing, the abusive behavior.

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

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

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

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

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