Strategically helping Colorado clients through divorce & custody cases
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By: Jessica A. Saldin

In most divorce cases, the parties are either still living together when the case begins or have recently separated.  However, it is also not uncommon for parties to have separated several months, or even years, before the divorce case is filed.  In my experience that can be for a variety of reasons.  In some cases the parties wanted to take time to attempt reconciliation.  In others, the parties simply never got around to filing. Furthermore, in some cases one party left and the other party did not want to file because they did not want the divorce to happen.  In sum, there may be a variety of other reasons why spouses wait lengthy times to file for divorce.  Regardless of the reasons, if the parties do get to the point of filing a divorce case, a common and reasonable question many parties ask is: what, if any, effect could this long period of separation have on the division of marital property and debts?  When reading this article, keep in mind that the court has the power to divide all marital property accrued up to the date of the decree.

The only time that marital property and/or debt acquired during a period of separation will be automatically set aside as one party’s separate property or debt is if it was a period of legal separation.  Legal separation is a formal legal process, similar to a divorce, and whether it may be the best fit for your situation will be discussed in a future blog post.  If you have received a decree of legal separation, property obtained after that point will be considered your separate property.  If you are not legally separated, though, and have only physically separated, the answer to the effect such separation has on the property and debt division is not as clear cut.

It is important to be aware of the fact that property acquired during the marriage, even during long periods of physical separation, is considered marital property.  Same with debt accrued during that time.  Therefore, if you are considering a divorce, it is best to start the process sooner rather than later to get resolution and to avoid property you acquire being considered marital property (to which your spouse could be entitled) and debt your spouse acquires being considered marital (part of which you could get stuck paying). Continue reading

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meeting-room-1499653-300x226By Michelle L. Searcy

Whether you are involved in a divorce (dissolution of marriage), child custody (allocation of parental rights), or modification family law case, you will be encouraged, if not ordered to participate in mediation.  In mediation, the mediator will work with you to try to resolve issues through agreement.  This confidential process gives you and the other party an opportunity to control the outcome of the case by reaching an agreement instead of having a stranger decide for you.  You may not resolve all of the issues.  Even if you are only able to reach agreements on some issues, it will help you pare down your court hearing time to focus on the issues that truly cannot be settled.

As a family law attorney, I have represented many clients through the mediation process.  Mediation does not always result in a successful outcome.  Often, I have heard clients express the opinion that mediation wasted time and money.  This article will help you avoid that feeling by focusing on ways to get the maximum benefit from mediation.  That said, mediation can frustrate the parties because the mediator lacks the authority to make either party agree to anything, or make decisions.  Some mediators apply pressure to the parties with the hopes of encouraging compromise.  It helps to keep in mind that the mediator’s judgment does not necessarily reflect the analysis the court may make when assessing a case. Continue reading

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whistle-1505616-300x226By:  Sarah T. McCain

In cases involving  child custody, especially those of a high conflict nature, you may hear the term “PCDM” mentioned as you near the end of litigation or settlement communications. It is often the recommendations of a Child and Family Investigator or Parental Responsibilities Evaluation that open discussions regarding whether to appoint a PCDM to a case.  However, you must first know what a PCDM is before you can assess whether one would be beneficial to you and to your family before making this commitment. 

A PCDM is a parenting coordinator/decision maker. You can appoint one person to fill this role and, once appointed, they may remain in this position for a period of up to two years, though their appointment can be terminated earlier by agreement of the parties or order of the court.   Appointments generally begin following the conclusion of a case and once court orders concerning parenting time and parental responsibilities have been entered. The role of the PC/DM is actually two different roles and a person can be appointed to do either, or, or both.  Parenting Coordinators and Decision Makers have different rules, functions, and consequences (for the parties). Continue reading

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missing-a-piece-to-my-puzzle-1532155-300x225By: Curtis Wiberg

In prior blog posts, we have discussed the duty of financial disclosures in a divorce.  Under Colorado Rule of Civil Procedure 16.2 (e), Colorado law not only requires an absolute duty to disclose one’s financial situation, but also how a failure to accurately disclose, whether by non-disclosure or misstated disclosure, allows a court to re-allocate the assets of a marital estate within the 5 years  subsequent to the final Decree of Dissolution, once a material omission of disclosure is shown.

The Colorado Court of Appeals has since, recently, taken that a step further.  Whereas a spouse, presumably before, had to come to court with proof or knowledge that the other spouse materially misrepresented or omitted disclosure of a material asset, now the Court of Appeals lowers significantly the threshold upon which a spouse can re-open litigation over the division of a marital estate.

In Marriage of Durie, 2017 CA 1295, the court permitted a spouse to reopen a case under C.R.C.P 16.2 (e) based upon “information and belief” that a material omission or misstatement of disclosure occurred, and that by meeting a showing beyond just vague “suspicions and speculations,” that party could additionally seek “discovery” (a procedure authorized by court rule to allow one party to obtain information and documentation from the other party) to attempt to demonstrate that the other party failed in its obligation to provide accurate information. Continue reading

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documents-1427202-300x226By: Stephen J. Plog

Having spoken with thousands of people over the years regarding their Colorado divorce and child custody cases, one common topic of discussion is that of evidence, within the context of what can or cannot be used in court.  There are many common misbeliefs about what is good evidence, meaning something the court can accept and use for purposes of formulating its ruling.   For example, sometimes people ask whether it would help for them to have friends or other third persons write letters, whether attesting to an event they’ve witnessed or perhaps as to someone’s “character.”   Each time this is asked, I am compelled to let people know that letters from third persons are not going to be helpful (generally) and are going to be considered inadmissible hearsay.  The second part of my response is always going to be that we will need the potential letter writer to attend court to testify.  The Colorado Rules of Evidence dictate what is or is not going to be admissible evidence in a divorce or child custody case.    In this blog post, I will attempt to give a basic tutorial regarding what will or won’t be admitted. Continue reading

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money-money-money-1241634-300x226By:  Michelle L. Searcy

At the most basic level, the Colorado child support calculation is based on the combined income of the parents, the number of children and the number of overnights exercised by each parent in Colorado.  Calculating income for a parent with a job that issues a W-2 is a fairly straight forward process.  However, less traditional forms of income have the potential to complicate calculating child support.  One of the more difficult issues in determining child support occur when a disability occurs with parents, step-parents, or children.  This article addresses those issues under the child support statute, section 14-10-115, C.R.S.

However, death and disability payments are treated differently depending on who is disabled (or deceased) and who is the named recipient of the benefit.  These distinctions determine whether the benefit is considered as income to the parent, income to the child, or an offset against a child support obligation.  As set forth below, the interplay between child support and social security benefits can be somewhat complex. Continue reading

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accounting-calculator-tax-return-1241864-300x226By: Jessica A. Saldin,

Starting in January each year, almost every party in a divorce case has the same question, “How do I file my taxes for the prior year?”  As long as you were legally married for the pendency of the entire prior year, you could file married filing jointly.  However, many parties ask themselves if, being in the middle of a divorce, that is the best way to file.  How to file taxes during a divorce is not an uncommon question.

The first goal is, obviously, to see if you and the other party can agree on how you will file.  If you cannot agree, though, the other option is to get guidance from the court as to how you should file.  If you have a status conference in your case between the beginning of the year and the filing deadline, you could ask the judge if he or she has any general guidance.  The general ruling of the court is that parties to a divorce case should file taxes in the manner most beneficial to both parties.  This does not mean that if it is most beneficial to you to file separately you should file in such way, regardless of the impact on the other party.  This means the method of filing should be the most beneficial to both parties combined (i.e., it may not be the absolute best way for one party to file but it is better overall for both parties combined).  If you do not know which way would be the most beneficial, it is advised that you ask a CPA to run scenarios for both individual filings and a joint filing.  After you have both scenarios, average the individual filings and see if that outcome would be better, overall, for both parties or worse.  For example, if filing separately would get one party a refund of $5,000 and the other party would owe $2,000 and filing jointly would get both parties a combined refund of $4,000, the most beneficial filing for both parties is filing jointly (that is a combined refund of $4,000 as opposed to a combined net refund of $3,000 from the individual filings).  To be clear, this does not mean you have to file jointly.  If you both agree to file separately, it is highly unlikely the court would force you to file jointly even if that would be most beneficial.  However, if you are unable to reach an agreement, and need to ask the court for assistance, filing in the manner most jointly beneficial is the most likely outcome from the court.

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globe-1419902By: Sarah T. McCain

When you commence either a divorce case or a child custody case in Colorado, you will inevitably hear the word “jurisdiction.” Though this term is mentioned in more detail in other blog posts, in summary, the term is referring to personal and subject matter jurisdiction. To acquire personal jurisdiction in Colorado, there must be service in Colorado, the other party agrees to have their matter heard in Colorado, or long arm jurisdiction applies.

To acquire subject matter jurisdiction in a divorce, the court must find that one or both of the spouses has lived in the state for a period of 91 days prior to the case being filed. This is pursuant to C.R.S. 14-10-106 and 107. Jurisdiction for child custody cases in Colorado and most states (Massachusetts is excluded) is determined by the Uniform Child Custody Jurisdiction and Enforcement Act found in C.R.S. 14-13-101. This is most often referred to as the “UCCJEA.” For custody cases, only subject matter jurisdiction is necessary, which is acquired when a child resides in Colorado for 182 days, or more.  The citizenship or immigration status of a party is generally not relevant to determining jurisdiction in either a divorce or a custody case.  When dealing with international child custody issues and a child taken out of the U.S., both state and federal laws may be needed to get that child back.  Continue reading

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watching-time-1238392-300x226By: Michelle L. Searcy

Often, the longer the marriage, the longer the duration of the obligation to pay maintenance (alimony).  As a result, one party in a divorce may still have many years of support to pay, even as he or she approaches retirement age.  Unless that maintenance obligation is contractual and non-modifiable, the person owing a duty of support may have a basis to seek modification of the term and amount of maintenance.  Since contractual, non-modifiable maintenance requires the parties to agree to that aspect of maintenance, any orders that do not clearly state this condition are modifiable.

Modifying maintenance places a heavy burden on the party seeking to modify to prove that a substantial and continuing change of circumstances has made the previous order unfair.  If you have reached full retirement age and are, in fact, retiring in a manner where your retirement income will not be sufficient to pay maintenance and your living expenses, your chances of modifying or terminating maintenance are good.  If you are retirement age, but still continuing to work full-time, you may find it more difficult to change maintenance.

Some professions allow for early retirement.  In Colorado, as relates to retirement, a person owing a maintenance obligation shall not be considered underemployed if: (1) the decision was made in good faith without a motivation to decrease or eliminate maintenance, and (2) the decision was objectively reasonable based on the particular circumstances of the party seeking to change the obligation.  These factors include, the person’s age, health and the usual practice in the industry of the obligor.  This standard was established in the 2008 Colorado Court of Appeals case,  In re Marriage of Swing, 194 P.3d 498.  The standard also applies to a recipient of maintenance who takes an early retirement and seeks to increase maintenance.  Swing established that modification cannot be denied solely on the basis that the otherwise objectively reasonable decision disadvantages the person receiving maintenance. Continue reading

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stork-2-1310593-300x211By: Curtis Wiberg

A relatively new concept for divorcing couples with children is a concept known as “nesting” or a “bird’s nest” parenting plan arrangement.  

What nesting entails is the parents sharing a residence to promote stability for the parties’ children. In a nesting arrangement, the parties split time at the marital residence while the children stay full time at that same marital residence.  The appeal to such an arrangement is obvious  — the children get to sleep in the same bed every night, stay in the same neighborhood, stay in the same school, and the only adjustment they have to make is that only one of the two parents is caring for them at night instead of both parents.  In some nesting arrangements, the divorcing couple share the same “other” residence for those nights when they are not with the children, saving money.  Also economical in such an arrangement is that the parents do not need to buy extra clothes, furniture, toys, etc. for each household. Continue reading