Strategically helping Colorado clients through divorce & custody cases

Articles Posted in Divorce

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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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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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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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price-tag-1240865-300x180By:  Jessica A. Bryant

I’ve yet to meet a single person who jumps for joy at the notion of going through a divorce and incurring costs as a result. Oftentimes, people ask what their case is going to cost them. Given so many unknowns and independent variables, I am generally left giving a range of potentials. Though I wish there was always clarity in the projected financial cost for a divorce and will always be upfront with clients about such matters, the reality is that it’s just not possible to give an accurate, exact figure for what their final charges might be. However, while reading news stories on the internet a couple of weeks ago, I came across a story which was, at least, insightful and may give me a little more ability to be more specific.  That story related to a recent divorce study showed that Colorado is the 9th most expensive state for a divorce. According to this study, the average divorce Colorado divorce costs $14,500 and the average attorney’s fees are $11,400 (which is the 10th highest in the country). In comparison, according to the same study, the cheapest state in which to get a divorce is Montana, with the average divorce there costing $8,400 and the average attorney’s fees being $6,600. The most expensive state in which to get a divorce is California, with the average divorce costing $17,500 and the average attorney’s fees being $13,800. Continue reading

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dictionary-1426438-300x226By: Stephen J. Plog

As a Denver divorce lawyer, I regularly meet with people in need of help with their family law cases.   With each meeting, I have to be conscious of each person’s level of awareness when discussing the legal aspects of their case.   After almost twenty years of practicing  family law, it’s easy to forget that to the person going through their first introduction to the world of divorce, the common phrases that attorneys use may sound like complete gibberish unless explained.  The soup of divorce related terms which might cause confusion for the person going through divorce for the first time is no more intelligible than if I were talking to a computer technician or mechanic about the specific parts of a computer’s CPU or the specifics of how a to rebuild a car engine.   Below I will list some of the common terms one might hear when going through a divorce, with the intent of educating so as to help readers make sense of some of the words they might hear, yet not fully understand.

Petition:   A petition is the initial document filed in a divorce case.  It lets the court know a brand new case is being started.  For divorce, the petition is called a “petition for dissolution of marriage.”   In a custody case it would be called a “petition for allocation of parental responsibilities.”   Petitions must be personally served upon the other party, along with a “summons.”  Once petition and summons are personally served, the court has jurisdiction over the second party to the case. Continue reading

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chasing-the-markets-1241622-300x200By:  Curtis Wiberg

Colorado law requires a Court dividing a marital estate in a divorce to divide the estate “equitably”, meaning fairly. See C.R.S. § 14-10-113. More often than not, an equal division of marital assets is the fairest result and the norm in most cases.  However, equal is not always fair, and a glaring examples of this is evident when one party has built up a PERA retirement account, while the other has paid into Social Security.  This article will focus on PERA, the unequal allocation of marital property after consideration of Social Security benefits, and a 2005 Appellate Court decision.

PERA (Public Employee Retirement Account) accounts are considered, under Colorado law, to be a marital asset. Social Security benefits, on the other hand, are forbidden under federal law from being valued and divided as a marital asset in a divorce. PERA employees, such as teachers or other government workers, receive their benefits built up from their public employment in lieu of Social Security, rather than in addition to Social Security.  Thus, by electing to take part in PERA, they are divested of certain Social Security benefits. Continue reading