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February 4, 2014

MEDIATION AND YOUR DENVER AREA FAMILY LAW CASE

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As family law attorneys in the Denver area, the lawyers at Plog & Stein are asked many questions on a daily basis. A fairly common subject raised by both current and potential clients is mediation. The questions we are asked vary and can be as simple as "what is mediation?" The reality is that though most people are familiar with the term, there are many misconceptions about mediation, how mediation ties into divorce and custody cases, the role of the mediator, and the end result of the process. As a large percentage of the Denver area metropolitan courts require mediation, our attorneys assist our clients through the process on a regular basis.

The first step in understanding mediation is knowing what exactly mediation is and what it entails. Mediation is a process by which two parties to a case meet with a neutral, third person, whose sole function is to assist them in arriving at an agreement. The mediation process will generally entail the parties meeting with the mediator together, or in separate rooms, letting the mediator know each's position on whatever issues need to be addressed, and then letting the mediator do his or her work in terms of trying to find compromise or middle ground between them. If the parties are able to find that common ground, the next step is generally to have the mediator, or the attorneys, put the agreement down in writing, preferably in a legally cognizable format, for signatures and submission to the court. Though this explanation is somewhat simplistic, it is an accurate representation of what mediation is and how it is conducted.

Beyond explanation of what mediation is, or entails, there are many finer points that the general public is just not aware of. Below, I will convey those finer points with the hope that a broader understanding is obtained by the reader.

1. Mediation is not a replacement for the court process. Often times, people will ask whether they can go to mediation in lieu of filing a court case. Mediation can be conducted before a case is filed, or during the court process. However, for any agreements arrived at in mediation to be binding and enforceable, a court case will still need to be filed. Thus, parties to a divorce may wish to mediate prior to filing a case, but will ultimately need to get that case filed before any agreements can become enforceable court orders. There is nothing precluding people from mediating prior to the filing of a case and submitting their agreement(s) with the initial filing. Generally, mediation occurs after a case is filed.

Continue reading "MEDIATION AND YOUR DENVER AREA FAMILY LAW CASE " »

September 14, 2013

Avoiding Problems in Colorado Restraining Order Cases (Part 2)

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Our last blog posting dealt with issues related to Colorado restraining orders. The posting was prompted by a rash of restraing order cases this summer, with numbers higher than any given year that I can remember in at least the last decade. In that article, I discusssed some of the pitfalls the person served with a restraining order might face, including pitfalls which could have lasting consequences, including criminal. This second posting on the topic will cover the opposite side of the coin in terms of behaviors the person seeking the protection order should avoid as relates to conduct, or contact with the restrained person.

When seeking a Colorado restraing order, the person in need of protection will first go to the court and fill out various forms, setting forth, on paper, the allegations or incidents which give rise to the need for protection. Generally, these allegations will relate to domestic violence, threats of domestic violence, or stalking type behaviors. Part of the paperwork will entail stating that he or she is in fear for his or her safety, or that of the children, if the other party is not restrained. In essence, the standard is that the person seeking protection is in fear of imminent harm if he or she is not protected.

Once the paperwork is turned in, the protected person will go before a judge or magistrate, testify as to his or her concerns and allegations, and most likely be issued a temporary protection order. An evidentiary hearing will also be set, at which it will be determined whether the protection order will be made permanent. As there are things a restrained person can do to damage his or her case, there are also things we, as Colorado family law attorneys, see over and over again, that the protected person can also do to damage the outcome of the case. Set forth below are a couple of simple rules to follow to help in making your protection order stick, or become permanent.

Continue reading "Avoiding Problems in Colorado Restraining Order Cases (Part 2) " »

September 1, 2013

Avoiding Problems in Colorado Restraining Order Cases (Part 1)

Judging by the number of restraining order cases, properly termed "protection orders," the experienced Denver area family law attorneys at Plog & Stein, P.C. have seen in the last few months, our assessment is that summer 2013 has been problematic from the standpoint of people behaving in inappropriate and unsafe behaviors. In other words, we have seen an extraordinarily large number of protection order cases this summer.

After successfully wrapping up another protection order case a couple of weeks ago, it dawned on me that there are certain pitfalls which either side of a restraining order case can face. Those pitfalls can have not only lasting effects as relates to that protection order, but also potential lasting effects in a custody case, or divorce case with children. Realistically, many restraining order cases will ultimately tie into a divorce or custody case. Some temporary restraining orders are even issued at the outset of such cases.

For now, I will focus solely on the protection order aspect of things. The general process for a protection order is that, first, the complaining party, or victim, will go to the court, without the other side, and state his or her case to the judge or magistrate, setting forth the allegations of violence, threats of violence, stalking, or whatever the case may be. One aspect of this initial hearing is the person essentially having to indicate that he or she is concerned for his or her safety in an immediate sense, if the other party is not restrained. He or she will actually check a box on the standard state form indicating such. Presuming the court believes, based on the testimony of the complaining party, that grounds exist, a temporary restraining order will be issued. The complaining party will then have the other party served with the complaint, as well as the temporary restraining order. On that order will be a set date for the parties to return for an evidentiary hearing to determine whether the restraining order will be dismissed or made permanent.

With service of the Colorado restraining order, the defendant will also be served with specific notice indicating that violation of a protection order is a crime, punishable by time in jail, as well as potentially a fine. Violation of a protection order can also lead to the court potentially making the order permanent, or further contempt of court proceedings. If one is served with a temporary protection order, he or she must be certain to take seriously the warnings set forth in the paperwork.

Continue reading "Avoiding Problems in Colorado Restraining Order Cases (Part 1) " »

July 21, 2012

Part 2: BE READY TO TESTIFY IN YOUR DENVER DIVORCE OR CUSTODY CASE

My last blog posting endeavored to get you, the litigant in a Colorado divorce or custody case, ready to testify in court. In continuing the topic from that posting, below are more tips to prepare you for that day. As a family law attorney, the primary goal is seeing each client finish a case with their desired outcome. These tips are important, as you, too, are an integral part of the process.

5. Do not try to out fox the other attorney with your testimony. Let your Denver family law attorney do that with his or her re-direct examination. Your job is to answer questions. The attorney's job is to frame the story. Your attorneys job is to also do the crafty thinking. Work together as a team. Though the opposing attorney's job is to trip you up or make you appear incredible, the truth is what matters most. Just listen and answer the questions, truthfully.

6. Along this same line, do not try to be cute, overly whitty, or arrogant with your responses. Courts can become quite annoyed with a pompous, cocky, or holier-than-though witnesses or party. Be polite. Be plain. Keep the flare and your opinions to a minimum. You want the judge to like you.

7. Do not play the religion card. I, personally, have nothing against religion. However, most courts do not perceive that religion really has a place in a hearing regarding alimony, visitation, or any other family law subjects. The religion card, as I call it, is most often used in custody hearings. People often think that judges will equate their going to church or professing their faith as a sign that they will be a better parent than their ex. In reality, judges often roll their eyes and find such behavior to be insincere and simple pandering to the court's potential own religous view points. Keep in mind that though you may be Christian or Moslem, your judge might be Jewish or an Atheist. Again, nothing wrong with religion, but attempting to use it in your testimony may very well back fire.

8. Be cool, calm, and collected in the courtroom. No eye rolling, no head shaking, no blurting out, "liar," when your ex is on the stand. The judge is watching you. You are a caring mother, father, husband, or wife focused on professionally dealing with the issues at hand. Again, off the stand theatrics or behavior can also make or break a case.

9. Don't look to your attorney or family or friends in the gallery for answers when testifying. Be ready to answer questions. When you look to others, you look stuck on the question and the answer you give may appear fabricated. If those supporters actually try to mouth your answer to you the judge will blow a gasket. When making an answer you find to be important you might want to look at the judge. Let him or her see the sincerity in your eyes.

10. Don't be overly emotional. Divorce and custody are emotional subjects. Sometimes people cry. We can all get choked up when discussing our children or something upsetting related to them. A tear now and then, particularly when related to a subject which should be emotional, can go a long way. Hamming it up to the point of crying about mundane financial or normally non-emotional subjects in your divorce case might win you an Oscar, but it will not be viewed well by a judge. The court wants the facts, minus the drama.

11. Do not argue with or show your anger towards the other attorney. It is quite common, in a Denver visitation or custody case, for one side or the other to raise the issue of the other parent's temper. Attorneys are just waiting to set the other party off. They are waiting for you to show venom and anger. So are judges. If you can't keep your cool on the stand how can you possibly be even tempered when dealing with your chidren? Don't get sucked into an argument. Let you attorney do the ugly work. Keep an even keel and tell your story with conviction, not anger.

Continue reading "Part 2: BE READY TO TESTIFY IN YOUR DENVER DIVORCE OR CUSTODY CASE " »

July 8, 2012

BE READY TO TESTIFY IN YOUR DENVER DIVORCE OR CUSTODY CASE, Part 1

Over the course of the last few weeks, my blog writing has been put on hold due to a whirlwind tour of hearing-after-hearing in various family law cases throughout the Denver metropolitan area. After this unprecedented string of trials, I had a chance to step back and assess all that I had seen. This run of courtroom battles included custody and divorce cases, both routine and emergency in nature. Having had a chance to look back and ponder, I determined one thing: there are attorneys out there seemingly taking little or no time to discuss simple, basic rules for testifying with their clients. Over my years as a divorce lawyer in Denver, I have never seen such a string of parties and witnesses wholly unprepared to testify. I cannot complain, as things worked out quite well for each of my clients.

When a Colorado custody or divorce case is contented, meaning issues are being fought over, the end result may very well be a final hearing. At this hearing, both parties will generally be required to get up onto the stand to testify, much as you might see in a movie or on TV. In the practice of law, each word an attorney speaks or writes may have significance to the outcome of a case. Likewise, each word a party utters on the stand, coupled with his or her demeanor and presence, can have an impact on how the judge or magistrate rules. Judges listen intently to party testimony, focusing not only on content, but body language, temperment, and the credibility of the statements put forth.

As Denver family law attorneys, it is important to prepare clients for hearing. This posting is not intended to discuss issues of content of testimony to a great degree. At the same time, content is important. Below are some of things parties need to know prior to taking the stand:

1. In any hearing, you will generally be subject to direct examination, cross examination, re-direct examination, and potentially re-cross. With direct examination, your attorney will generally ask you questions designed to elicit a substantive, non yes-or-no response. As such, your attorney should try to provide you a list of questions you will be asked ahead of time. This way, you can work on your answers or ask the attorney ahead of time regarding what he or she is looking for in terms of a response. You do not want to be on the stand guessing what your attorney may need you to say or what may be relevant to the judge's ultimate decison. On cross examination, the other attorney will get to ask you yes-or-no questions designed to either refute that which you testified to when asked by your attorney or to elicit other information helpful to their case. With re-direct, your attorney will then get to ask you other questions based upon the cross examination, for either rehabilitating that which you have stated, or clarifying answers you stated on cross examination. Recross, if allowed, will be the same as cross. It is important for parties to know the procedural flow of testimony and to know that both attorneys will generally get two bites at the apple.

2. Understand that with your testimony you are essentially telling a story. You should keep focused on that story, with the knowledge that your attorney is there to help you tell it within the confines of the rules of evidence and courtroom procedure. You should be aware of the specific facts or points your attorney is trying to get out of you to tell your story and make your side of the case. Discuss what your attorney is looking for prior to hearing, including the broad subjects of importance to your case. When testyfing as to child support, Denver area judges want to hear the relevant factors relating to the issue, not side issues which have no bearing on the subject. Let your attorney guide you as to each topic. This will help you stay focused and on task.

Continue reading "BE READY TO TESTIFY IN YOUR DENVER DIVORCE OR CUSTODY CASE, Part 1 " »

June 2, 2012

THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 1)

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) " »

April 29, 2012

When Is The Right Time To File My Colorado Divorce?

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? " »

March 10, 2012

Protecting Your Identity And Information In Your Colorado Divorce

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.


Continue reading "Protecting Your Identity And Information In Your Colorado Divorce " »

January 6, 2012

NEW 2012 DEADLINES/TIME FRAMES IN COLORADO DIVORCE AND CUSTODY CASES

As with the coming of any new year, 2012 stands to bring change to Colorado, and the world as a whole. This, of course, incudes the world of family law. Commencing January 1, 2012, Denver divorce and custody attorneys are faced with changes to the Colorado Rules of Civil Procedure regarding deadlines and time frames. Though none are earth shattering and many are variations of old rules, they can certainly have an impact on a case if not followed. These changes affect the time frames for responding to motions, issuing discovery, declaring witnesses, and general time frames regarding filing and case management.

Perhaps the most significant change relates to the interplay of C.R.C.P. Rules 5 and 6, as relates to the filing of pleadings and deadlines. C.R.C.P. Rule 6 used to provide for an additional 3 days for a person to file certain documents with the court, such as a response to a motion. This 3 days depended upon how the original document being responded to was served. For example, though C.R.C.P. Rule 121 (1-15) indicated that a response to a motion was due within 15 days of transmission of that motion, Denver area divorce attorneys knew that so long as the motion was mailed, e-filed, or essentially sent via means other than actual service or hand delivery, there would be an extra 3 days for the response to be filed, or 18 days in the aggregate. As of January 2012, we attorneys, and parties not represented by an attorney, no longer have those 3 extra days. C.R.C.P. Rule 5 still makes allowances for filings on a Monday or the day after a court holiday which might otherwise have been due on the weekend or on that holiday.

Fortunately, though we have lost the extra 3 days added to the time frame for submitting various filings, such as responses, the state has seen fit, pursuant to revised C.R.C.P. Rule 121 (1-15), to extend the time for filing a response to a motion, from 15 days to 21 days. Thus, in some instances, we have lost the 3 days, but have gained more time to take action. Sadly, the time to file a reply to a motion (essentially responding to a response for those non-attorneys) will still remain 7 days. Until a few years ago, that 7 days was 10. Fortunately, the powers-that-be did not lessen that time frame further. I presume most divorce and custody attorneys will be thankful for the extra time to file responoses to motions, as complexities can create the need for more time to respond in some instances.

Other lesser changes handed down will have some bearing on domestic relations cases. In new divorce or custody cases, the intial status conference must be held within 42 days of the case being filed, instead of the prior 40 days. With contempt of court actions, C.R.C.P. Rule 107 now indicates that the contempt motion and citation must be served 21 days prior to the first hearing, generally the advisement, as opposed to the previous 20 days.

Prior to final hearings, whether related to pre-decree divorce or custody issues, or significant post-decree actions, such as child support or parenting time modifications, attorneys have been required to file what is called a "joint trial managment certificate," which sets forth the issues before the court, party positions, witnesses, exhibits, etc. 10 days prior to the hearing. That time frame, as per C.R.C.P. Rule 16.2, has now been shortened to 7 days. Likewise, the time frame for exchanging exhibits has also been shortened to 7 days, down from 10 as well. These changes give attorneys more time to prepare during those final days before hearing, including gathering any additional documents/exhibits. Many judges are "cool" about the JTMC deadline and will often not hold attorneys to the strict 10 days for filing. Additionally, when two attorneys can work together (such as with one of my hearings set for next week), they will often agree that exhibits can be exchanged in less than 10, or now 7 days. In those instances in which the court or opposing counsel holds steadfastly to the strict deadlines set forth in the rules, attorneys can take comfort in knowing there are now 3 extra days to accomplish these tasks.

Continue reading "NEW 2012 DEADLINES/TIME FRAMES IN COLORADO DIVORCE AND CUSTODY CASES " »

October 18, 2011

HOW DEMEANOR, PERSONALITY, AND RELATIONSHIP BETWEEN ATTORNEYS CAN AFFECT YOUR COLORADO DIVORCE OR CUSTODY CASE

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With almost each new client call I get, whether for a Denver area divorce or custody case, one of the first questions I ask, presuming there is an existing case is, "who is the other attorney?" One might think this is a silly question that doesn't matter. To the contrary, it can make all the difference in the world. The whole tenor or tone of a family law case can be determined by who the opposing counsel is.

In conjunction with the demeanor of a case also comes cost. Potential clients often ask, "how much will the overall cost be?" I generally respond that the overall cost is largely dictated by how much of a fight there will be. One of the key factors can be the attorney on the side.

The law is presumably the law. Judges are, in essence, judges. However, most family law attorneys in Denver (meaning those who solely focus on family law), become attuned to how our judges will likely rule on various issues. When you get two, what I will call "reasonable," attorneys on a case, with the experience and insight into the specific court, cases can often be settled without much of a battle. The attorneys can generally assess the ins and outs of a case relatively easily. Once the finanical disclosures are exchanged, the division of property, alimony, and child support become fairly clear. There may still be minor skirmishes over issues, but in the end the case is generally resolved without a court hearing. This is because the attorneys more or less know the outcome. As such, we advise our clients accordingly, though we acknowledge and honor their rights to make the final decisions as to settlement or proceeding to litigation. In these instances, both time and money can be saved for the client. To clarify, a good settlement means settling to something that is as good, or better, than what the attorney believes is attainable through a hearing in front of the judge.

However, regardless of facts and outcomes in a divorce or custody case being readily apparent, there are cases in which the attorney dynamic can affect cost, the path the case takes, etc. Without naming any names, there are attorneys in the family law circle who have the reputation of making cases ugly. There are attorneys who will counsel or encourage their clients to battle over seemingly every issue, even those that are black and white. There are attorneys who will send a nasty letter or e-mail seemingly every day. There are attorneys who will do wasteful things like issue discovery or set depositions just as a matter of course. Some might chalk up these styles of practicing law to being "zealous advocate." In many instances, I chalk this up to being wasteful and dismissive of the notions of efficiency and client costs.

Continue reading "HOW DEMEANOR, PERSONALITY, AND RELATIONSHIP BETWEEN ATTORNEYS CAN AFFECT YOUR COLORADO DIVORCE OR CUSTODY CASE " »

September 15, 2011

Witness Deadlines and Your Colorado Divorce or Custody Hearing

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In Colorado, most procedural issues regarding litigation of a divorce or custody case are set forth in Colorado Rules of Civil Procedure Rule 16.2. This rule, in essence, sets forth procedure from start to finish of a family law case. Though we see most cases settle without ever having to go to a final, witnesses-on-the-stand, hearing, not all cases settle. As such, once a hearing is set, we make sure not only to mark the hearing date on our calendar(s), but to also mark down any relevant deadlines.

Sadly, not all litigants in a divorce or custody case are aware of the deadlines. Not all attorneys adhere to them either, at their own risk and to the risk of their clients. Specifically, I am referring to various deadlines related to the disclosure of witnesses or compelling a witness to testify. As family law attorneys in Denver, we know the importance of these deadlines. Missing your witness deadline may leave you precluded from having witnesses you may want to testify able to do so. Failing to get a subpoena issued in time may leave you unable to force testimony from unwilling third party.

Pursuant to C.R.C.P. 16.2(e)(3), lay and expert witnesses whom a party intends to call for a final hearing must be disclosed, in writing, to the other side no later than 60 days prior to that hearing. This disclosure includes the potential witness' name, address, phone number, and a sentence or two concerning the general content of their testimony. For expert witnesses, a copy of any report or written opinion and their resume or cirriculum vitae (fancy term for a more detailed professional resume) must also be provided. Additionally, a list of publications in the last 10 years and cases testified in over the last 4 years must also be provided. Failure to provide this information may, again, preclude your witness from testifying.

It is not uncommon for there to be joint experts in Colorado divorce or custody cases, such as Child and Family Investigators or home appraisers. As such, the strict requirements may not always be applied. However, one should always assume they will be held to the rules. It is not uncommon for people to call us less than 60 days prior to their hearings seeking our services. It is also not uncommon to see people who have not used an attorney up to that point having blown the 60 day deadline. As the Denver metropolitan area has many different courts, and many different judges, the rules are not applied the same in each court. Some judges may be more relaxed about witness disclosures, or suggest to the other side that if they object based on a blown deadline, the court will just re-set the matter for a later date. Other judges will hold a party's feet to the proverbial fire and preclude improperly declared witnesses from testifying. This can potentially make or break a case.

Parties to a Denver divorce or custody case must keep in mind that the rule applies to both lay and expert witnesses. They must also keep in mind that a lay witness, such as a neighbor, teacher, or friend, may have something just as valuable to say as an expert. Contrary to popular belief, you cannot just get an affidavit or written statement from a person and provide it to to the court. That would be inadmissible hearsay and would not come in.

Another factor to keep in mind is that it is better to be over inclusive than under inclusive when declaring your witnesses. Just because you have declared a witness does not mean you have to use that person. Whom you ultimately call to testify is your choice. Being over inclusive keeps your options open. You or your attorney can then whittle down the list as you get closer to hearing.

Continue reading "Witness Deadlines and Your Colorado Divorce or Custody Hearing " »

August 10, 2011

BACK TO SCHOOL: YOUR DENVER DIVORCE OR CUSTODY CASE

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August and September are upon us. That means the time of year when the children start, or go back, to school. As divorce and custody attorneys in Denver, we see various issues that arise regarding school. These issues can be educational, financial, or related to aspects of a visitation or custody battle. Below are some of the topics that our experienced family law attorneys deal with:

1. School information: In many divorce or custody situations, one parent is the primary custodian for both custody and school enrollment purposes. As such, the other parent may be seen as a secondary parent in the eyes of the school. The custodial parent should always remember to list the non-custodial parent as the secondary contact on any registration or information form. Denver family law lawyers jump at the chance to show a party is not interested in co-parenting. A common bit of information those attorneys might use are school contact forms. We see parties add new boyfriends or girlfriends, grandparents, the milk man, or just about anyone besides the other parent. When knee deep in a custody or visitaiton battle, you do not want the other attorney using your failure to list the other parent against you as evidence of your inability to find value with that parent. The custodial parent should also get into the habit of mailing or e-mailing report cards, important notices, calendar and event information, field trip notices, etc. to the non-custodial parent. Both parents should be informed, and you don't want to be accused of keeping the other parent in the dark on these issues.

For the non-custodial parent, you may have orders in place regarding the custodial parent providing you with school information. This is great, but you should not rely on such alone. As a Denver custody lawyer, I see many instances in which the non-custodial parent is not kept informed about school issues, or in which he or she finds out about a concert or field trip the day before. You, as the non-custodial parent, still have power and rights. Take it upon yourself to proactively make sure you are abreast of school issues, regarless of the other parent. Make sure the office has on record that you, too, are to be informed of any signficant academic, activity, or disciplinary issues. Be proactive with the teachers. Throughout the school year, there will be grade reports, notices of activities, information on projects, and other various informative documents sent home by the teacher. At the beginning of the year, ask the teacher to specifically make sure you are provided a duplicate of all things sent to the other parents home. Sometimes these notices are sent with the children. Sometimes children lose them or the other parent forgets to share. You could get into the habit of e-mailing the teacher each week as a back up to see what, if anything, of importance came home. You should also, on your own, make sure you keep abreast of parent teacher conferences. In some cases, the parties are so mad at each other they cannot even attend a parent-teacher conference together in a civil manner. Schools are aware of this. Most teachers will accommodate you with a second conference. Again, you have the power to be on top of your child's education without having to rely on your ex. Use it.

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July 28, 2011

Various Steps For Enforcing Orders Entered In Your Colorado Divorce Case

The Denver divorce attorneys at Plog & Stein, P.C. handle all aspects of Colorado divorce and custody cases for both men and women. This includes representation before final orders are entered and after. A significant problem faced by many people, particularly in these economic times, is what to do when the other party is not following the final orders that have been entered.

This posting will focus primarily on non-child support orders and remedies other than contempt of court. For those topics, see our main website or prior blog articles. There are other, non-child support, situations that people may find themselves in after there divorce is final. There are also other legal remedies beyond contempt of court. Contempt of court may be a great avenue to pursue when the other side is not complying with the court's order, but not always. Below are a few examples of other enforcement remedies available to our clients.

Scenario 1: Let's say the separation agreement sets forth specific visitation for the mother and the child lives primarily with father. Let's say father decides he is just going to stop letting mother see the child. Let's say the child is 5 and there are no danger issues presented by mother's environment. Rather than filing a contempt of court action, mother might consider filing a motion to enforce parenting time pursuant to statutory section C.R.S.14-10-129.5. With the filing of a motion to enforce parenting time, the court can grant various forms of relief, including make up parenting time, attorney fees, contempt like remedies, modification of existing orders, and even make the father who is not complying post a cash bond to be forfeited should there be future non-compliance. The nice thing about a motion to enforce parenting time is that it is supposed to be given priority placement on the court's docket, meaning the matter may be heard much sooner that a contempt of court action. Additionally, this type of a motion should generally entail one hearing, whereas a contempt entails both the advisement hearing and the actual evidentiary hearing. The burden of proof with a motion to enforce parenting time is also a preponderance of the evidence standard instead of the beyond a reasonable doubt standard that comes with a punitive contempt.

Scenario 2: Let's say the parties are divorced and the husband is supposed to sign over the title to the house to the wife. Let's say he won't do it. Again, though the wife could certainly file a contempt motion based on husband's non-compliance, she might consider instead filing a motion pursuant to Colorado Rules of Civil Procedure Rule 70. Pursuant to Rule 70, the court is vested with the power to enter an order authorizing the clerk or another third person to sign the document in place of the husband. That signature should be just as legally valid to the county clerk and recorder. If the house is in the actual district, the court may also enter an order of conveyance that should also suffice. To pursue Rule 70 relief, a motion must be filed outlining the court's order, the other party's non-compliance, and specifying the document that needs to be signed. Barring a valid response (which husband is likely to forego filing anyway), the wife should ultimately have that deed signed in a legally binding fashion. She should also ask her divorce lawyer about recovering attorney fees for husbands ridiculous behavior.

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July 12, 2011

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

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

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

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

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

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

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

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

July 5, 2011

DO I HAVE TO HAVE A LAWYER FOR MY COLORADO DIVORCE OR CUSTODY CASE?

As a Colorado custody and divorce lawyer, Denver is a big town full of big questions. One question we sometimes get from people who call to inquire about our family law services is, "do I have to have a lawyer to get divorced?" The answer is NO. You are not required to have an attorney to file a divorce or custody case. People can go through the process on their own, and they do.

As the economic fortunes of the nation and the state have turned, we have seen an increasing number of cases in which people try to do their divorce and custody cases on their own. As time goes by, we also have seen an increase in instances in which they do the initial case on their own, but end up needing an attorney later on, whether 6 months, or a year, or two years down road. Why? Because things were not done correctly in the first place. I's were not dotted, and T's were not crossed. The finer points of arriving at a fair agreement were not known to the parties at the time. Do you have to have a lawyer? NO. Can paying an attorney, even just to review your agreement before you sign on the dotted line pay off down the road? YES. There are two phrases or cliches that come to mind, "penny wise and pound foolish" or "an ounce of prevention is worth more that a pound of cure."

In this day and age of the internet, people can simply go on-line and find the divorce forms they need and instructions on how to fill them out. They can print off check-the-box separation agreement and parenting plan forms, for free. They can sit together, or alone, and fill those forms out. Though the forms are somewhat comprehensive, they are standard or stock forms. They do not provide all of the details that experienced family law attorneys might put into a final divorce or custody agreement. They do not explain the law or how the court system often works. They do not divulge the finer points. It is understandable that people would rather try to do their divorce, custody, or child support cases without having to pay a lawyer. Paying a lawyer is like paying a doctor. No one wants to do it until they have to.

The attorneys at Plog & Stein have seen multiple cases in which detail is left out by those trying to save some money on their divorces. We have seen cases in which the parties agree that one will keep the house, but have written in no language as to how the other will get his or her name off of the financing, or his or her equity out of it. We have seen people entitled to alimony waive it without even understanding their rights, or that a waiver is final. We have seen people pay too much child support, or receive too little, because they didn't know the law. We have seen people hand over the right to claim the children for taxes because they live mostly with the other party. We have seen people hand over parental responsibility (decision making) or residential custody without thinking about the ramifications of doing so and how difficult it is to change those items later on. I could go on and on, but I will stop. We have also seen instances in which these omissions, mistakes, or agreements made without truly understanding the law have led to thousands of dollars in legal fees being incurred down the road. Keep in mind, not all legal mistakes can be corrected.

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