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Articles Posted in Divorce

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By Michelle L. Searcy

While browsing the news one morning, I recently came across an article discussing some “surprising” divorce laws throughout the country and wondered how those laws compare to Colorado laws on the same subjects.  This article, which will be posted in two parts, explores those comparisons.

In Arkansas, couples have the option to enter a strict “covenant marriage.”  If that option is chosen, getting a divorce becomes more difficult.  Those in a covenant marriage must attend marriage counseling and separate for a specific time period before a divorce will be granted.  Colorado does not require marriage counseling or any period of separation prior to filing for a divorce.  However, given the cost, stress and impact of divorce on the parties and the children, it may be worthwhile to attend marriage counseling to explore possibilities of reconciliation voluntarily

California law includes a statutory six month waiting period before a divorce will be final.  Colorado has a statutory waiting period too.  However, in Colorado, the court can enter a Decree of Dissolution of Marriage 91 days after service of the petition.  It is not unusual for divorce cases to take six months to one year to be finalized depending on the circumstances. Continue reading

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In my experience, nothing seems to annoy a judge more than being required to allocate who gets the personal property acquired during a marriage – TVs, beds, tables, paintings, etc. Accordingly, most attorneys tell their clients to try figure it out among themselves.  When valuing personal property in a divorce, unlike insurance valuations, courts generally use “garage sale” values to determine what tangible personal property is worth, and almost invariably, it’s not worth much. Keep in mind that courts are vested with discretion to divide marital property in a divorce as they deem to be fair.

Thus, when you are paying your attorney $250 – $350 per hour, arguing over who gets the 2 year old flat-screen or the used king-sized bedroom set, the divorcing couple needs to make a cost-benefit determination of whether a fight over a possession is financially worth it, or whether to just take a deep breath and buy a replacement item. Continue reading

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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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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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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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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

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money-symbols-abstract-5-1169282By: Sarah T. McCain

When dividing property and debts during your Colorado divorce proceeding, there are a number of factors to consider prior to simply dividing the property equally down the middle. There are a number of articles on this blog addressing what is marital property and what is not. Please review those postings for further information on that issue. In summary, the court is only looking to equitably divide marital property. Property owned prior to marriage can be separated as pre-marital property so long as you meet the burden of showing, through appropriate documentation, that this property was not only pre-marital but that it was not commingled in any fashion with marital property, during your marriage. Remember that the burden of providing that documentation is on the person making the pre-marital or separate property claim. Furthermore, if you are making a claim that the other party’s pre-marital property has increased during your marriage, once again, the burden is on you to ensure that you have the documentation to prove that the other party’s gained value during the marriage.  Continue reading

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In Denver area divorces, a court is charged with the responsibility of equitably dividing marital property under C.R.S. 14-10-113.  Marital property is generally defined as any property acquired during the marriage, regardless of how that property is titled.  The exception to this general rule is for property acquired by a spouse by gift or inheritance, or property brought into the marriage by a spouse (provided that that property is not comingled or gifted to the other spouse during the marriage).  These exceptions allow a court to characterize those items of property as a spouse’s “separate property.”

Even with these exception to the general rule, property brought into the marriage or acquired by gift or inheritance can gain value, or “appreciate,” during the marriage.  The increased portion gained on the separate property is considered marital property, and that gained value is something the court is properly charged with dividing. Continue reading