Strategically helping Colorado clients through divorce & custody cases
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eggs-oranges-1-1546941-300x226By: James C. McTurnan

The judge in a divorce case has the unenviable task of disentangling the lives and livelihoods of spouses who are unable to reach agreements on their own. Often, the lives of divorcing spouses are complex, and it is not unusual for any case to have its fair share of challenging issues. However, at times, an issue comes along that tests the boundaries of the norms in a divorce case. One such issue has been put before the Colorado courts not once, but twice in recent years: what happens when the “assets” of the parties to the divorce case are frozen…cryogenically? There have been two recent Colorado cases that delve into the disposition of cryogenically frozen pre-embryos that, if implanted successfully, would lead to new human life. To resolve any dispute, a judge must engage in an analysis that is comprehensive, unbiased, well-reasoned, and ultimately fair to the litigants. Resolving a dispute on the disposition of cryogenically frozen pre-embryos compels the Judge to navigate the outermost crossroads of science, existence, morality, and the ability of the law to adapt to our ever-changing understanding of the world around us.  

What is most useful for a prospective divorce litigant in examining these cases, aside from an intriguing story, and the insight they give into our court system and the mechanics of legal analysis. To address even the most exotic legal issues, the analysis must begin with established legal principles, and follow a logical pathway to conclusion. The court, in In Re Marriage of Olsen, 2019 COA 80, utilizing the guidance of the recent Colorado Supreme Court decision in In Re Marriage of Rooks, 2018 CO 85, had to follow just such a process to reach its conclusions. Continue reading

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By: Jessica A. Saldin,

In any family case, so much focus is put on going through your case and getting to the final orders, but what happens when you get an order and you aren’t happy?  This article lays out your option when you get an order from the court that you do not agree with.

The first step is making sure you have a written, signed order.  Nothing can be filed regarding changing the order until it is put in writing and signed by the judicial officer.  While this may seem fairly obvious, there are circumstances that can occur that lead people to forget this first step.  For example, often at the end of a hearing the court will simply enter an oral ruling and, if you are not happy with that ruling, it is easy to want to jump to the next step to seek relief from that order.  But until the oral ruling is reduced to writing and signed by the judicial officer, it is premature to file any documents seeking relief.  Another issue to be aware of is the effect of a minute order.  During court proceedings it is common for the court clerk to be typing a record of the proceedings, which is known as a minute order.  If the judicial officer signs that minute order, that is sufficient to serve as a final written order to start the deadline for relief from that order.  However, if the judicial officer does not sign the minute order, you still need a signed order before you can proceed to seek relief from the order.

The next step is to determine whether the order was issued by a magistrate or a judge because that impacts the process you follow to seek relief from the order.  If the order was issued by a magistrate, in most instances the only procedure to seek relief from the order is to file a petition for review pursuant to C.R.M. Rule 7.  You cannot ask a magistrate to reconsider their order, clarify their order, amend their order, etc.  The petition for review is the only avenue for relief.  Additionally, if you do not file a petition for review, you cannot file an appeal of the order to the appellate court.  The petition for review is a prerequisite of being able to file an appeal.  The petition for review must be filed 14 days from the date of the order if the parties are present when the order is entered, or 21 days from the date of the order if the order is mailed or otherwise transmitted to the parties.  To clarify, if the court enters an oral ruling, but the written and signed order is issued later, and mailed or electronically submitted to the parties, that will still follow the 21 day deadline.  You only follow the 14 day deadline if the court hands you the written and signed order in court.   Continue reading

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hollywood-sign-2-2004-1235306-300x226By: Sarah T. McCain

While recently reading the entertainment section of the news, I came across  a story highlighting the divorce of Brad Pitt and Angelina Jolie. Clearly most of their issues were not those that the average individual can really relate to. However, there were some items that you see in many high conflict divorces that deal with parenting time schedules and the division of property and debts. 

First, their divorce started with allegations being made concerning Brad Pitt and the parties’ eldest son, then a teenager. Since that time, while you may see photos of him spending time with the younger children, there are little to none of him with this eldest child. So what do you do if a child, and more specifically a teenager, doesn’t want to spend time with you? Barring any issues with abuse and/or neglect, the options are fairly limited. Continue reading

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calendar-series-1-1192580-300x226By: Plog & Stein, P.C.

Chances are if you are considering divorce, you are facing difficulties in your marriage that you don’t believe you and your spouse will be able to overcome. Perhaps you have even made the decision to divorce, but are unsure what the  best time to file is. Here are some facts that are intended to help with this decision. Please note that this is not an exhaustive list but rather a list of some  (non-emotionally based) reasons why it may be advantageous to delay, or not. 

Reasons to Delay Filing to a Later Date:

  1. Collecting on Your Spouses Social Security: If your marriage lasted more than ten years, you may be able to collect on your spouse’s social security after divorce. If you are close to the ten year mark, but not quite there and you think that you will otherwise qualify to collect on your spouse’s social security, you may want to time your filing for divorce such that you will reach the ten year mark before your divorce is finalized.  

Continue reading

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us-capitol-1233848-300x226By: James C. McTurnan

If your Colorado child custody case involves children of Native American decent, there could be more to your case than just the ins and outs of Colorado family law. The Indian Child Welfare Act of 1978 (ICWA), a federal statutory section, addresses the rights of Indian tribes with respect to custody determinations regarding Indian children. Under the ICWA, Indian tribes have an interest in the welfare of Indian children which is independent of the rights of that child’s parents. Though the ICWA does not apply in cases allocating parental responsibilities to a Native American child’s biological parents, it could be a factor if a non-biological parent seeks custody of a Native American child.  In such cases, the ICWA gives tribes the ability to intervene in child custody proceedings and qualifying cases may be removed to tribal court.

When Congress enacted the ICWA, the Act sought to address the impact that the adoption of Native American children by non-tribal parents was having on Native American tribes. Although Colorado custody cases are generally guided by state law, Colorado courts must also follow federal law when it is applicable. The ICWA requires that Colorado courts inquire into whether the child in a custody case is of Native American descent and thereby subject to the Act. The Colorado Court of Appeals recently decided a case involving the ICWA, In re the Marriage of Stockwell, 17CA1482, which highlights the occasional tension between federal and state law which can complexity to a family law case. Continue reading

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highway-1448970By: Jessica A. Saldin

It is not uncommon for people facing the end of a marriage or break-up of a relationship to contemplate moving out of state- either for a fresh start, to be nearer to family, or other reasons.  We often have people facing a divorce or custody case asking if they would get in trouble if they leave the state of Colorado with the child(ren).  In general, as long as there are no orders in place and they have not filed or been served with a divorce or custody case, there wouldn’t be any law preventing them from leaving Colorado.  However, that is not us saying we recommend people go ahead and leave.  If people leave the state with the children, and a case is then filed, the court has the authority to order the parent to bring the children right back to Colorado.  Additionally, the parent that left with the children is often viewed in a negative light with the court.  It can come across that the person left to try to “win” at the divorce or custody case and become the primary parent.  However, if there are provable issues of domestic violence and evidence that the parent left with the children for safety reasons, the court is not supposed to make a negative inference from the person’s departure (though they can still order the parent to bring the children back).

The better course of action (actually recommended by the court in a published court decision) is for the parent to remain in Colorado, with the children, and ask the court’s permission to move as part of the case.  In initial divorce and custody cases (before final custody orders are entered) a parent wanting to live out of the state of Colorado has special Constitutional protections.  As per a Colorado child custody decision, the court actually has to take each party where he or she intends to live and allocate custody accordingly.  Therefore, it is best to remain in Colorado until orders are entered by the court, rather than leaving prior to filing or being served and risk the court ordering you to bring the children back and starting off on the wrong foot with the court.  However, this does not apply to situations where you have written agreement from the other party to take the children out of state (email, text message, signed agreement, etc.) or where you are moving but the children will stay in the state of Colorado.  In those situations the court should not have an issue with you moving prior to orders being entered. Continue reading

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hand-fingers-1-1187038-300x140By Michelle L. Searcy

Colorado law requires the court to “divide the marital property, without regard to marital misconduct, in such proportions as the court deems just, after considering all relevant factors…” §14-10-113(1), C.R.S.  People commonly refer to this provision as “no fault.”  While it seems a simple concept, parties are often unaware of their own attempts to inject fault in a property division.  Most folks understand that the court is not concerned with who cheated or who decided to end the relationship, but there are other issues that may come up in a divorce where the parties may want to argue that the property division should favor them due to the acts of the other party.

One of the relevant statutory facts concerns “the contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker.” §14-10-113(1)(a), C.R.S. The first aspect of this factor that one must consider is the contribution language.  I often hear how one party’s retirement should be theirs alone because they put in the work that allowed the retirement to grow.  However, by statutory definition, the retirement is included as marital property because it is acquired during the marriage. §14-10-113(2), C.R.S.   Continue reading

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chart-1238452By: Stephen J. Plog

As indicated in many previous Plog & Stein blog posts, Colorado Revised Statutes indicate that parents have a legal obligation to provide financial support for their children.   This requirement is manifested in child support orders flowing from child custody, divorce, or stand-alone child support cases.  Monthly child support amounts are calculated pursuant to C.R.S. 14-10-115 and pursuant to a table or formula which is essentially based on the parents’ combined incomes and the number of children to be supported.   Statute expressly caps the formula at a combined adjusted gross income for the parents at $30,000 per month or $360,000 per year.  Where does this leave high income families with a combined monthly income over the $30,000 cap?

In cases in which the parents’ combined gross monthly income is over $30,000, the court has various options available to it, though it cannot enter a child support order below what it would be at exactly $30,000 combined income, unless it has a good reason to deviate from the guidelines.  Specifically, C.R.S. 14-10-115 (7)(a)(II)(E) states, “The judge may use discretion to determine child support in circumstances where combined adjusted gross income exceeds the uppermost levels of the schedule of basic child support obligation; except that the presumptive basic child support obligation shall not be less than it would be based on the highest level of adjusted gross income set forth in the schedule of basic child support obligation.”   While a minimum amount is clearly set by statute, an amount above that minimum is squarely up to the judge presiding over the case, as reiterated or clarified in a recent Colorado child support case. Continue reading

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budget-cuts-1172571By Michelle L. Searcy

Comedians have written countless jokes about losing half of everything in a divorce.  While it is, by far, the most common outcome that the marital estate will be divided equally or nearly equally, parties to a divorce have considerable control over how much will be left to divide.  Sadly, it is not uncommon for people with fairly significant estates to walk away from a divorce with a fraction of what they had to start, and not because their former spouse received the majority of the property.

The first step to controlling costs in a divorce concerns budgeting.  You will need to decide when to move into separate homes.  In many cases, this is a given, but if you are able to peacefully co-exist on a temporary basis, then it is possible to reduce expenses during your divorce by continuing to share them.  Of course, you still need to plan and prepare for setting up separate households eventually.   Actually separating once the big financial picture has been resolved can save a tidy sum of money.

Continue reading

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leisure-1356172-300x218By:  Sarah T. McCain

In the past several years there has been a renewed focus on mental health care and those going through divorces or custody cases are not immune to those issues. It is incredibly common for a parent to seek the assistance of a therapist to discuss these often complicated emotional issues. Children are not immune to emotional or mental health issues either, especially when their parents are in the midst of high conflict cases.  If raised to a court that a child is struggling, it would not be unheard of for a professional involved with the case, such as a Child and Family Investigator, or the court itself, to suggest that a child be involved some sort of therapy to deal with the divorce related issues.  Therapy is generally seen as beneficial for children going through a divorce so that they have a third person outlet to talk to.  Until recently, parents were really in charge of the mental health process in terms of counseling, communication with counselors, access to information, etc. for children under the age of 16.   Additionally, children over 16 had their own rights as related to therapy and confidentiality.  This has now changed.

With the rise of mental health issues among children of younger and younger ages and the rise of suicide as the leading cause of death for Colorado youth ages ten through fourteen, Colorado has taken measures to ensure that children have every opportunity to access mental health assistance.