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.
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photo_1069_20060213.jpg The rumors circulating in the Denver Colorado family law community regarding alimony/maintenance, mentioned by us in early 2013 blog postings, have now become reality. Starting January 1, 2014, Colorado will be following new “maintenance” guidelines as set forth in Colorado’s House Bill 13-1058, which was signed into law this past May. “Maintenance” has also been called alimony in the past and in other jurisdictions. It is money one spouse pays to a former spouse every month for a period after a divorce or formal separation.

In the recent past, in Colorado, courts have tended to disfavor maintenance except where circumstances are especially compelling. This included scenarios such as when a lower-earning spouse needs to attend school or training to be able to support themselves or where a former spouse has a physical condition that impairs his or her ability to work or where one party has to take care of an infant or toddler.

Those who may have been concerned about this new law can rest assured that most of the law is not truly “new.” Rather, many of the factors outlined in the new law were previously left up to an individual judge’s discretion and this sometimes led to inconsistent results in factually similar scenarios. What is new is that the Spousal Maintenance Act offers a concrete formula to calculate maintenance and detailed guidelines for the court to implement in determining the amount of maintenance and the term.
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photo_6288_20080611.jpgIf you file for divorce in Colorado, within 40 days of serving your husband or wife you must also file a sworn financial statement with the court and make various mandatory disclosures to your spouse. Unlike some other states, Colorado is not a community property state; not all of your property is considered equally the property of your spouse. Therefore, the judicial system requires that spouses make each other aware of their financial information while coming to an agreement on marital property, debts, and maintenance.

When the parties are unable to come to an agreement, the court divides the marital property by weighing several factors. Among these factors are: each party’s contribution to acquiring the property, including the contribution of a homemaking spouse, the value of each party’s contribution, economic circumstances of both partners when they divorce, which partner is going to have custody of the children, and any changes in property values where only one party owns the property. Some items often considered “marital property” by the court are pensions, life insurance policies, tools, businesses, houses, vehicles and furniture.
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1391967_baby_hands-1.jpgChild support is considered a child’s right in Colorado. In every divorce or custody case involving children in Colorado, the court will determine whether one parents owes the other child support. Usually child support does not continue indefinitely, of course; it terminates upon a child’s emancipation.

“Emancipation” in Colorado occurs when a child turns 19, marries, joins the military, graduates from high school and/or becomes self-sufficient, or death–whichever comes first. These are considered the moments when a child becomes an adult.

Until child support is terminated, a mathematical formula in Colorado’s child support guidelines are used to calculate the appropriate amounts. While it is possible to calculate the amount yourself using worksheets, an attorney can help you figure out whether you can ask the court for a deviation from the formula or not. For example, an attorney can argue to the court on your behalf if you need to ask for more child support because of large medical expenses or private school tuition. Support is calculated using both parents’ incomes and taking into account how much time each parent spends with the kids. The guidelines do not apply, however, in the case of very low or very high-income parents.
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As divorce attorneys in Denver, we deal with various issues in any case. This can include issues related to children, property, financial support, and more. Not all cases are the same. One of the significant issues that can arise in a divorce is the division of property. In most cases, the property to be divided consists of a home, retirement and bank accounts, vehicles, investment accounts, or the furniture and pots and pans. However, there are families or parties to a divorce case who own businesses or business interests. As part of our divorce practice, experienced family law attorneys at Plog & Stein assist with the valuation and division of business assets as well.

Colorado business interests come in all shapes and sizes. A person may own a large business, such as a chain of restaurants or a car dealership. A person may own a small business, such as a one person accounting firm or a mom-and-pop laundry mat. A person might also own a fraction or portion of a business, without owning the whole entity outright. In a Colorado divorce setting, a business, or interest in a business, is generally considered property. As property, the same principles for dividing other assets apply. Property acquired during the marriage, absent a limited exception, is marital. Increases in value during the marriage to property acquired prior to marriage are considered marital in nature. Titling on property determined to be marital does not matter and said property can be divided by the court regardless of whose name it is in.

Prior to arriving at the actual division of a marital business asset, the parties must determine the value of a business. Contrary to popular belief, the value of any business is more that just looking at the assets/property and debt to arrive at a value from a balance sheet approach. Though this can be one facet of a business valuation, there is much more to the equation generally accepted by attorneys and courts in a Colorado divorce case. Beyond assessing assets and liabilities, a business valuation will entail an assessment of current and historical revenues and profits. This analysis also ties into the term “good will,” which can be quantified into an actual dollar figure. We have seen cases in which there may be a two person professional operation in which one party or the other will say, “There’s no value to the business; I am the business.” Of course, this will be a statement made by a husband or wife who actually runs or owns the business. Conversely, the other party may find it meritorious to look into whether even a small business has value for asset division purposes. As part of the process, business valuators can also determine historical values, such as the value at the time of marriage or acquisition, as well as the current fair market value.
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333066_nana.jpgAn area that can present a cause for concern in Colorado child custody cases is the question of grandparent visitation. Can grandparents request visitation with their grandchildren through a judicial process just as a divorced parent asks for parenting time with his or her child? Colorado gives grandparents more legal rights than many states do, but these rights are still limited. A grandparent can bring a case to court only under certain circumstances.

Colorado Revised Statutes 19-1-117 controls this issue, stating that a grandparent can seek judicial recourse under such conditions as: (1) the parents are legally separated or divorced and there has been a child custody case, (2) custody of the child has been given to someone other than the parents, (3) the marriage of the parents is annulled, or (4) the child’s parent who is the child of the grandparent dies.

Additionally, grandparents cannot sue for visitation merely because they are estranged from the parents. The grandparents bear the burden of proving by clear and convincing evidence that a parent who wants to deny them visitation is not acting in the child’s best interests and also that visitation would be in the child’s best interests.

Colorado courts also look at a parent’s rights in these visitation cases. An unusual but instructive discussion came up in an appellate case earlier this year In re Parental Responsibilities, MDE. In that case, a great-grandmother sued for visitation under the grandparent statute when her granddaughter got a divorce.
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Denver custody and divorce attorneys see all types of cases related to child issues. This includes divorces with children, custody cases, cases involving modification of visitation, cases involving enforcement of existing visitation orders, and contempt of court cases. The parent/child relationship in one case will not be the same as in another. Though the general hope is that the bond between mother or father and the child is strong, the reality is that that bond can be strained for various reasons, whether related to the break up of the family, a child with behaviorial issues, a parent with challenges in terms of appropriately parenting, a parent engaged in child alienation, time, distance, or a child just getting older and spreading his or her wings. From a custody law standpoint, the question arises of “what do you do when your child doesn’t want to go for visitation?” The answers vary, but there are steps to take to heal relationships, enforce your court orders, and to protect yourself if you are the primary custodial parent.

Though not extremely common, it is not that unusual to have a non-custodial parent entitled to parenting time indicate that a child, or children, do not want to come for visitation with him or her. Often times, the non-custodial parent will be left with no real explanation other than the other parent saying the kids are “angry,” “afraid,” “bored,” “don’t like your new spouse,” etc. Of course, children are not always going to feel comfortable sharing those feelings with that parent, out of fear of hurting their feelings or upsetting them. The non-custodial parent is left in a postion of wondering what the right move is? Should they force the children to come, knowing they don’t want to? Is the other parent doing something to influence the childr not to come? Will the court do anything? Court’s are used to allegations from some custodial parents that the children don’t want to go for visitation, for various reasons. Generally, the children’s statements would be hearsay and not admissible in court. As such, the key to figuring out what is going on is counseling. Counseling in these types of situations can come in many forms. When a child doesn’t want to go for parenting time, for whatever reason, one can try to get to the core of finding out why via getting the child into individual counseling?

From a problem solving standpoint, perhaps the more effective tool would be to get the child and non-custodial parent involved in reintegration or reunification counseling. This is joint counseling with parent and child designed to figure out what’s going on and to work with both parent and child to get over the emotional or behavioral hurdles which have the child avoiding visitation. The sole focus of the reintegration therapy is to heal the relationship. Aside from situations in which a child is resisting parenting time, this type of counseling is also generally deemed appropriate by the courts in situations in which a parent has been absent for long periods of time. Above either parent’s wishes or rights, a court wants to know that a child is emotionally safe and comfortable with visitation. As such, reintegration therapy will generally be the first, and hopefully last, step. Sadly, there are cases in which this therapy doesn’t work. Neither parent or child may be willing to change their positions or behaviors. The custodial parent may be alienating the child from the other parent. These types of concerns will likely come out in the therapy and can also be dealt with via the court.

When your child does not want to come see you, the primary concern should be how to deal with things. Forcing the child in a non-therapeutic setting can only make things worse, particularly with teenagers. Additionally, parents must keep in mind that as kids get older, say 14 or 15 years of age, they will want more autonomy. Courts recognize this as well and once kids reach their mid-to-late teenage years, courts will often factor in their wishes when dealing with visitation. Again, forcing the issue can make the rift greater. With children this age, it is better to take things slowly, with the hope that they will see the light and come around once they reach adulthood. By this I mean that you shouldn’t sacrifice your future relationship by forcing the issue in a highly aggressive manner today. The law affords remedies which one can avail himself or herself of. Don’t give up. Just proceed with intelligence, and in a legally appropriate manner.
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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.
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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.
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As Denver family law attorneys, the lawyers at Plog & Stein understand that life events happen after a court order is in place for child custody and visitation (referred to as parenting time). A parent’s or parents’ circumstances may have improved with a new or better-paying job, stable housing, or simply a good mental state. An improved status for the parent seems to equate better parenting for the child or children, but it is not always as simple as that for the Colorado court system – especially when the parties discussing custody include people who are not the child’s or children’s biological parents.

In the last year, an appellate decision, In re the Parental Responsibilities Concerning B.R.D., A Child, 2012 COA 63, No. 10CA2386, examined what factors needed to be present for a modification of a prior court order regarding decision-making and parenting time. In this case, the child had been placed for adoption by the mother shortly after his birth. She formally asked the court to place him for adoption and give up her parenting rights, and the couple proceeded with the adoption process. The biological father learned that he had a son several months later and opposed the adoption. The biological mother then decided to withdraw her request, causing the adopting couple to request the court that the biological parents’ rights be terminated.

702367_page_curl_.jpgSubsequently the couple and the parents figured out an arrangement that gave the couple sole parental and decision-making responsibilities and parenting time to the biological parents throughout the week and weekends. The biological parents asked that they be allowed to seek modification in the future, and were ordered to pay child support to the couple. As more time passed, the biological parents grew closer to the boy and sought to have more time with him. Specifically, the father sought to have more time and greater say in the decision-making process regarding the son’s life.

The lower court looked at the standard set in a case, In re Parental Responsibilities of M.J.K., 200 P.3d 1106 (Colo. App. 2008), to see whether continuing the original order that gave the couple the main care of the child and decision-making should continue. The Court found that it would not endanger the child and that it would be in the boy’s best interests to keep the status quo because the change would potentially cause greater harm than benefit.

The father appealed and said that the Court looked at the wrong legal standard in its decision. The appellate body agreed and said that Colorado follows a presumption that the biological parent is a fit parent who will act in the boy’s best interests. It would then be up to the couple to challenge the presumption and show that it wouldn’t be in the boy’s best interests for the father to have more time and decision making in put, and that it is in his interests for the order to remain in place as is.
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