Strategically helping Colorado clients through divorce & custody cases

Articles Posted in Divorce

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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

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liqueur-9-1525927By:  Curtis Wiberg

We’ve previously written about legal strategies when in the midst of divorce proceedings when one spouse is struggling with a drug or alcohol problem and its affect on a custody case. This article discusses alcohol abuse and dependency in general, tips for saving a marriage (if possible), and resources if those attempts fail.

According to a recent study, alcohol is the most abused drug in the country. One study states that 1 in 12 Americans suffer from alcohol abuse or dependence. That staggering statistic obviously impacts many marriages, and a fair number of divorces that Denver divorce attorneys might deal with.

Part of the difficulty with alcoholism is knowing when your spouse has crossed the line from social drinker to abuser. Is your spouse exhibiting a compulsion to drink, unable to abstain, exhibiting symptoms of alcohol dependence like nausea, shakiness, or anxiety, or acting dangerously or impulsively when drinking? If so, it may behoove you to discuss your concerns with your spouse and determine if an alcohol assessment is appropriate. Continue reading

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running-track-2-1528273By:  Curtis Wiberg

The Colorado divorce decree just entered… so now what?

This is actually a very important phase of the divorce, and if you’re presented by an attorney, it may behoove you to keep your attorney retained to make sure all the loose ends are resolved satisfactorily.

Many divorce orders or agreements call for retirement accounts or pensions to be split up.  Because retirement accounts are governed by Federal law, the entry of a special order for the division of a retirement account, known as a Qualified Domestic Relations Order (QDRO) is required. Some parties are so relieved that the divorce is over, they don’t follow through, or procrastinate, on hiring someone to draft the QDRO and filing the paperwork for the division of a retirement account with the court and plan.  As with many other obligations, procrastination and lack of follow through can have drastic consequences.  Some retirement accounts or pensions have time limits within which QDRO’s must be entered.  Retirement accounts are valuable assets, and it’s important to take this next step to ensure that retirement accounts are divided as ordered or as agreed upon. Continue reading

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caution-1315680By:  Sarah T. McCain

When the decision to physically separate and dissolve the marital relationship is made, there are some basic steps each party to a Colorado divorce should consider taking to ensure a smooth transition, an ability to appropriately deal with finances in the short-term, and an ability to logistically function as they move on to the initial phases of an actual divorce case.   Specifically, there are steps one might initially take to make dealing with bills, expenses, and personal property easier.  Regardless of the complexities in your case, some simple preventative measures might go along way.

The initial stages of dividing finances can be a rocky experience for many couples.  It’s important to have an understanding of what the financial circumstances are.  You will need to know what the overall marital obligations are, such as utilities, mortgage or rent, car payments, insurance, and credit cards.  This should include an understanding of due dates and how these items have traditionally been paid.   The first step is gathering documents necessary to give you a clear picture, which should be done before either you or your spouse leaves the marital residence.   Gathering these documents jointly and creating a plan regarding who-will-pay-what is preferential.   If collaboration is not an option, it still makes sense to gather as much documentation as possible so that you can assess not only how best to protect yourself financially, but also for purposes of compiling evidence for your case.  Once you leave the home you should presume you’re not likely getting back in.  Conversely, once your spouse leaves, presume he or she will take various documents that you may no longer have easy access to.  Having a clear understanding of the financial puzzle will help you to figure out what needs to be done throughout the process. Continue reading

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property-market-1223813By:  Stephen J. Plog

As indicated in various, previous posts over the years, one of the primary issues which can arise in any divorce case is the division of marital property. While reading the news the other morning, I came across a story regarding the case of an English couple battling over their divorce and division of property.  The gist of the article tied into an appellate ruling related to division of the marital estate and whether that division would deviate from the norm based on the husband’s contributions.  Specifically, the parties were arguing over how to divide their $225 million marital estate, with the husband arguing he should receive a greater share than normal due to his special contribution to the marital estate.   The special contribution the husband claimed was the fact that his superior intelligence or “genius” lead to the creation of the vast amount of wealth to be divided.    The English appellate court ultimately ruled against him.

While analyzing this and other cases, the author pointed out that under English law, the norm is to divide a marital estate equally.   This is also the norm in most Colorado divorce cases, whether that norm is arrived at through settlement or a hearing with the court.  Given that many of our notions of legal fairness stem from English law, I was not shocked to learn this.   Of course the bigger aspect of the article was the issue of how British courts might treat contribution of one spouse towards the marital estate as a basis for deviating from the norm of equal and awarding the greater contributor a greater piece of the proverbial pie.   Given my years of experience and familiarity with Colorado family law, I immediately started pondering the issue of contribution and how often it’s really a factor in a Colorado divorce case. Continue reading

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no-symbol-circle-with-slash-prohibition-sign-1146029By:  Curtis Wiberg

If you are contemplating a divorce or legal separation, but are afraid of retaliation by your spouse, know that the Colorado Legislature has enacted law to protect you right out of the gate. This provision of the law is known as the Automatic Temporary Injunction and is located at C.R.S. 14-10-107 (4)(b).   The specific terms of the injunction are required to be set forth in both the divorce summons and petition.   There are four key protections set forth in Section 107, and they go into effect on the Petitioner as soon as the Petition for Dissolution of Marriage is filed with the Court.  The protections go into effect on the Respondent as soon as the Respondent is personally served or signs a waiver of service. The four protections are as follows:

(A) Restraining both parties from transferring, encumbering, concealing, or in any way disposing of, without the consent of the other party or an order of the court, any marital property, except in the usual course of business or for the necessities of life and requiring each party to notify the other party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the injunction is in effect;

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yellow-flag-in-pocket-1510212By:  Curtis Wiberg

Sometimes a high profile divorce can help teach a lesson on key issues that exist in an everyday Colorado divorce. The divorce proceeding currently underway in Texas involving Denver Bronco wide receiver Emmanuel Sanders is one such case.

Gabriella Sanders filed for divorce in October 2016, in Texas. Within the last two weeks, the website TMZ broke the news that Gabriella Sanders alleges that Emmanuel Sanders committed marital “atrocities,” including spending thousands of dollars on multiple other women for the purpose of having extra-marital affairs. To add to the salaciousness of the allegations, Gabriella claims that Emmanuel lied to the Broncos of needing to be excused from practices in November to attend the birth of his baby when really he wanted time off in order to pursue these sexual relationships.  In fact, Gabriella did not give birth to their baby until the second week of December. Continue reading

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calculator-and-pen-indicating-work-study-1632106By: Curtis Wiberg

When parties are getting a Colorado divorce, each party and the Court need to know what the marital estate consists of. To achieve that, Colorado Rule of Civil Procedure, Rule 16.2, was enacted requiring each party to disclose just about everything about the financial information they possess. The specifics of what that entails were discussed in detail in a prior article written by this firm.

Since the enactment of Rule 16.2, the Colorado appellate courts have interpreted and applied this rule, and have clarified further what duties of disclosures parties in a divorce or custody matter owe to each other.

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soldier-and-child-1550984-200x300By:  Jessica A. Bryant

Serving in the military can have unique impacts on your Colorado divorce or custody proceeding ranging from questions as to the proper state in which to file, special protections for service members, and questions regarding retirement account division. In Part 1, I discussed the impact military service has on the state of filing and the protections afforded to military service members. This second part focuses on financial issues that are unique to military service and the effect deployment can have on parenting time.

 

 

 

Financials Issues

One area unique to divorces where one or both parties are members of the military is the division of retirement accounts. Military members who serve a minimum of twenty years are entitled to pension benefits. Federal law allows the Court to divide a military retirement account if a variety of factors are met. This is a very technical area but two main requirements that must be met are that the parties must have been married for at least ten years overlapping the parties military service (i.e. for a ten year marriage the military member must have served all ten years for the court to be able to order direct division of the retirement account). Furthermore the military member must reside in the state not due to military orders, claim the state as his or her state of legal residence, or agree to the court’s jurisdiction before the court has the authority to divide the retirement plan. By way of example, let’s say a wife wants to get divorced, she and her child have lived in Colorado at least six months, husband, a military member, lives in Kansas but wife was able to get him served in Colorado when he came out for a visit. In those circumstances, even though Colorado has the jurisdiction to grant the divorce, decide custody, spousal support, child support and generally divide property and debt, Colorado would not be able to order the division of husband’s military retirement account unless husband agrees. Continue reading

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military
By:  Jessica A. Bryant

Serving in the military can have unique impacts on your Colorado custody or divorce proceeding ranging from questions as to the proper state in which to file, special protections for service members, and questions regarding retirement account division. The first part of this article will address the impact military service has on the state of filing and the protections afforded to military service members. The second part will focus on financial issues that are unique to military service and the effect deployment can have on parenting time.

Before a case is even started, serving in the military can cause unique questions in terms of where to file your family law case. If you are seeking a divorce, you must be “domiciled” in Colorado for more than 90 days before you can file. Domicile basically means that Colorado must have been your state of permanent residence for at least 91 days before you can seek a divorce in Denver, Colorado. However, being stationed in Colorado is not sufficient to make it your state of permanent residence. One question is which state was designated on your State of Legal Residence Certificate. Other facts the Court can look to in order to overcome such designation include: the state in which the military member is registered to vote, has a driver’s license, filed taxes, intends to remain long-term, and/or registered his or her vehicle. However, vehicle registration alone may not be sufficient to show permanent residency as some military members register a vehicle in Colorado but complete an Affidavit of Nonresidence for tax purposes. Thus, before filing a divorce case in Colorado, you need to comprehensively look at the facts and ensure there is sufficient evidence of permanent residency for at least 90 days. Even if Colorado is not the state of permanent residence (for example, the military member is stationed here but intends to return to another state after such is complete) as long as the children have been in Colorado for at least 6 months, Colorado will be the state in which custody has to be determined. Therefore, it is possible that Colorado will be determining the custody issues while another state determines spousal support, allocation of property and debts, and grants the dissolution.