Strategically helping Colorado clients through divorce & custody cases
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ringsBy:  Curtis Wiberg

In 2014, the United States Supreme Court legalized same-sex marriage in Obergefell v. Hodges, 135 S.Ct 2071 (2015), and no state in the United States is able to deny the right to a same-sex couple to get married.

So, while the law seems clear as to what the Obergefell case means going forward, did the Obergefell case convert same-sex relationships that existed prior to Obergefell in states that recognize common law marriage?

In Colorado, the case that most clearly defines what constitutes a common-law marriage is the case of People v. Lucero, 747 P.2d 660 (Colo. 1987). Lucero articulates that there must be a mutual understanding between the parties to a relationship that the parties consider themselves to be married. Courts looking at whether the parties to a relationship have this mutual understanding look to such things as cohabitation, whether the parties file tax returns as married or single, whether on party takes the other party’s last name, whether there was an understanding amongst friends and families that a couple considered themselves to be married, and whether there was an intermingling of finances. Continue reading

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keep-an-eye-on-you-1-1461307-300x200By:  Sarah T. McCain

When emergencies, such as when the emotional and/or physical safety of the children is at risk, people generally turn to the court, asking for immediate protections, the primary one of which is supervised parenting time. There are many options when it comes to supervised parenting time and, in many cases, the best and only option will be using a facility. Traditionally, courts will first look to supervised visitation being done at a parenting time supervision facility. There are positives and negatives to using such a facility. Supervisors in these facilities are neutral individuals who take notes of what transpires at the visitation sessions, from the initial interactions to the moment where the non-supervised parent comes to pick up the minor child(dren). This can be beneficial in circumstances when allegations are being made of inappropriate statements to the children or allegations that the children are hesitant to be in the presence of the supervised parent. This neutral supervisor can be on the look-out and address any of those concerns. The supervisor can provide written reports for evidentiary purposes and can testify if necessary. Supervision centers generally charge an hourly rate, sometimes on a sliding scale. Continue reading

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house-2-1225477-300x236By:  Jessica A. Bryant

After a divorce decree is entered, there may still be steps that need to be taken to wrap up property division issues (for example completion of forms and orders to divide a retirement account and/or steps to divide the ownership and responsibility for real estate). When a home was jointly titled and jointly mortgaged during the marriage, and one person is keeping the property following the divorce, there are steps to take to finalize the sole ownership of that property item. One such step is changing over the title, which is as straightforward as signing a quitclaim deed and recording it with the clerk and recorder’s office for the county in which the property is located. The more complex step is getting the person that did not retain ownership off of the mortgage. This step is necessary for the protection of both parties. For the party retaining the property, it ensures they have complete ownership of the property, as well as complete responsibility for all liabilities, and can be solely responsible for future decisions for the property. For the person not retaining the property, it is critical to ensure you are removed from the mortgage. If the other person does not pay the mortgage, and you are still on the mortgage, the bank can come after you for recovery of the debt, regardless of what your divorce orders say. Therefore, if the other person will not be able to remove you from the mortgage for the property, it may be important to consider alternative methods of dividing the property, prior to finalizing the divorce, to ensure you are protected from creditors.

It is not uncommon for the individual that is the primary parent of the children to want to retain the house as their property, to ensure consistency for the children. However, depending on the person’s income, they may not qualify to refinance the mortgage into their sole name, which may cause issues for the other parent in terms of protection for credit, ability to qualify to purchase another home, etc. Therefore, before finalizing a divorce case, it is important to consider all aspects of the property division, including whether the party receiving any real estate as their sole property will be able to refinance any mortgages into their sole name.

One aspect that can be considered in determining a person’s qualifications or ability to refinance is whether there maintenance (alimony) orders in the case.  Alimony payments may be considered as “income” for mortgage qualification purposes.   However, alimony payments will only be considered for a refinance if they are court ordered payments, have been received consistently for six months, and will be received for at least three years. These time frames are important because steps you take while your divorce case is pending could actually affect whether a person is able to refinance the home. For example compare the following scenarios: Continue reading

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512154742-300x200By: Janette Jordan

In the State of Colorado, when you have a pending family law case before the court, such as a divorce filing, allocation of parental responsibilities filing, post-decree modifications, etc., courts typically require that the parties attempt alternative dispute resolution (ADR). In fact, C.R.S. 13-22-301, et seq. states that courts can require the parties of a contested issue or dispute to engage in some form of alternate dispute resolution.   The mediation is the most common form of alternate dispute resolution utilized by family law litigants, there are methods by which parties may elect to resolve their issues. Continue reading

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tape-recorder-1479279By: Curtis Wiberg

With the ease of technology making the prospect of recording phone and in-person conversations with a soon to be ex-spouse so much easier, more and more clients are presenting me with recorded conversations (whether audio or video) with their spouse for potential use as evidence in their divorce cases. A whole host of issues arise whenever this occurs.

The foremost consideration is ensuring that the recording was made legally. Colorado is one of the many states that allows for “one party consent” as an exception wiretapping criminal laws. C.R.S. § 18-9-303. What this means is that if there is one party to a conversation that consents to the recording of the conversation, then that is generally legal in Colorado. So, if you, as a party to a conversation, consent to the recording of the conversation, even if the other party is unaware that the conversation is being recorded, that is not illegal in Colorado. Continue reading

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sad-boy-1564119By: Stephen J. Plog

While attending an early morning elementary school band practice with one of my children, I saw something sad and troubling. Though I have had countless occasions in which to hear parents talk about child custody or divorce cases and how they impact their children, I have rarely, if ever, seen, firsthand, how children react when dealing with divorce. The interlude I saw between child and teacher was troubling enough to me that I feel compelled to write this post. My ultimate hope in doing so is to reach parents and to educate them on how a simple, brief conversation might prevent upset to their child down the road.

The specific incident I saw bright and early Monday morning involved an elementary school band teacher, a very nice person by all accounts, and a little boy, roughly 9 years old. While the collective group was working on perfecting one song or another which youngsters might learn in band, the teacher stopped the class to reprimand, appropriately, a few of the boys who had clearly spent little or no time practicing their songs or instruments. She addressed the first couple individually, who essentially responded the they hadn’t had time. The third boy, striving for honesty as little kids generally do when being put on the spot, tried to explain that he couldn’t practice at his mom’s apartment, only his father’s house. The teacher, obtuse to the fact that the little boy seemed nervous or apprehensive to talk, continued to press. The little boy explained that his mother lived in an apartment and that she was concerned that the neighbors would complain about loud music (or attempts at music). At this point, the little boy’s eyes were starting to well up with tears. He did not seem to be upset at the fact that he was being interrogated over his practice habits, but rather that he was having to discuss the fact that his parents were not together. I want to say I recall him saying the word, “divorce,” but cannot swear to such with 100% certainty. The teacher ultimately stopped. Continue reading

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tax-1501475-300x226By: Jessica A. Bryant

A bill was recently passed that makes several changes to the current U.S. tax law. One such change affects the way spousal support (maintenance/alimony) is treated. Under current tax code related to divorce, the spouse paying maintenance is given a deduction on his/her taxes and the spouse receiving maintenance had to declare the maintenance received as income on his/her taxes. The new tax bill eliminates the deduction for the alimony paying spouse as well as the requirement that it be declared as income by the receiving spouse. However, this change does not go into effect until 2019. Specifically, anyone currently under an order to pay maintenance will continue to receive the deduction, even after 2019, and anyone divorced before 2019 will receive the maintenance deduction as well. For Separation Agreements and initial maintenance awards entered on or after January 1, 2019, though the paying spouse will not receive any tax deduction. Continue reading

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157635691-300x202By:  Sarah McCain

In December 2017, an article was posted on the firm blog reviewing some important tips to keep in mind prior to becoming involved in a custody matter. That posting reviewed only a few examples of what can take place in those types of domestic relations cases.  Though that posting only related to child custody issues, it could be relevant as relates to a divorce with children.  Of course, there are more preparatory issues to think about in a divorce.  When you’re looking at a dissolution of your marriage, there are additional items to make sure you have in line before you file or when a divorce is initiated by the other party.

First, if you are thinking of filing for divorce, it is not the time to make extravagant purchases for yourself. It is also not the time to begin transferring funds from any type of financial account. This falls under a term called “dissipation of martial assets.” The court will look at these expenditures or transfers to determine whether that financial exchange was done in an effort to keep the funds from the other person or done in anticipation of filing for divorce. For example, if you transfer $50,000 from a savings account just prior to filing for divorce, with the intention of keeping that money from your spouse, it is likely that the court will order you to reimburse the other party their share of the funds. Depending on the circumstances, it is even possible that the court could order that more than 50% be reimbursed to the other party, thereby giving them a greater share. Essentially, the idea of trying to hide money from your spouse could completely backfire and result in your receiving less than an equal share of the marital estate.  Additionally,  once you have filed for divorce, or have been served, hiding assets would be a violation of the C.R.S. 14-10-107 (4)(b)(I) divorce injunction. Continue reading

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By:  Curtis Wiberg

A divorce is a giant upheaval, and the challenges of maintaining your career while going through a divorce and adjusting to a new personal life and routine can be one of the biggest challenges.

There is of course the emotional upheaval associated with a divorce. Divorce stress can greatly affect motivation, concentration, sleep and appetite.

There is also the related embarrassment of a personal issue becoming common knowledge among your employers and colleagues.

Some of the questions you should ask yourself as you are going through a divorce include whether to even let your bosses know about the divorce. Your specific situation probably dictates whether and how to approach your employer with the news that you are going through a divorce.  I have seen many clients who’ve been able to rely on their employers as a major asset in the process. For instance, in cases involving custody issues, sitting down with your boss to discuss flexible scheduling and working remotely for the purpose of dropping off or picking up kids from school can help you present to the court as being fully able to assume primary or equal parenting time. Continue reading

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New-Year-300x200By: Janette Jordan

New Years 2018 is upon us.  It’s that time of year again for reflection and new beginnings. We all have room to grow and improve, especially when you’re attempting to co-parent through a divorce, or even after. The holidays can be an especially difficult time and every person’s situation is different.  Poor and negative communication can only make the situation work.   Today, there are many ways of communicating, whether via phone, email, text, or a third party parental communication site.   Regardless of the media, how things are stated still matters, and venom can also come through in written words.  When it comes to communicating with your ex about the kids, here are some things to consider.

Tone & Language:  I tell every client that comes through my door, “communicate with the other party as if a judge is looking over your shoulder,” because typically, that’s what will end up happening when you have a dispute that the courts need to resolve. No matter how frustrated you may get, you should avoid using derogatory language, even if the other side “started it first”. Poor parenting behavior is often the first accusation made in contested child custody cases and you want to make sure your communications do not support that. Only you can control how you respond. Continue reading