Strategically helping Colorado clients through divorce & custody cases

Articles Posted in Divorce

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house-for-sale-1236738-300x203By:  Curtis Wiberg

In a typical divorce where a couple are owners of a home, that home is often one of the most valuable assets of the marriage, and the issues of possession and division of the net equity can become a greatest sources of dispute.  The court is tasked with a duty to equitably divide the parties’ assets and debts under C.R.S. 14-10-113 and the timing of this division generally occurs at the time of the final orders and decree.  

Because the net equity can be a ready source of cash at the time of sale or refinancing, parties are often desirous of tapping into that asset while the divorce is ongoing.  At times, they agree to allowing one party to refinance and buy out the other spouse from their share of the equity, or just selling the house and dividing the net proceeds from the sale at closing.  Under CRS 14-10-107, an automatic temporary injunction goes into effect, at the commencement of the divorce, against both parties,  which prohibits disposal of marital property without an order of the court or by mutual agreement. If the parties agree to the disposition of property during a divorce, they can submit their agreement to the court, for it to become a court order.

There are divorces, however, in which one party wants to sell the marital home as soon as possible and the other refuses. What then? The Colorado Court of Appeals addressed such a case in In re: Marriage of Gavend, 781 P.2d 161 (Colo. App. 1989).  Continue reading

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waste-paper-1240618By: Curtis Wiberg

During a divorce proceeding, or in a post-decree modification proceeding, issues related to a spouse’s income or assets are often disputed, especially when one spouse suspects the other spouse is hiding income or assets from them.

Typically, bank records and income information is disclosed through the mandatory financial disclosure process of Colorado Rule of Civil Procedure 16.2, or (if you have need to review many months worth of financial documents) through the process of discovery as outlined in Colorado Rules of Civil Procedure 33 and 34. These rules of civil procedure, however, operate on the premise that the spouse will abide by their duty to disclose requested or required information. Some spouses, whether through dishonesty, indifference, or neglect, do not abide by their duty to disclose (or fully disclose) their information as required under these rules.  

The spouse who does not disclose information as required is vulnerable to significant sanctions, and these sanctions often are sufficient to protect the spouse seeking this information.  However, if production of documents remains necessary, a party’s right to subpoena documents exists under a different, C.R.C.P. Rule 45. Continue reading

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handshake-1238138-300x200By:  Sarah McCain

I recently read an article listing current divorce statistics and providing eight divorce horror stories from both the client and the lawyer’s perspective. The stories ranged from issues with excessive fees, fraud, disappearing spouses, and those with a second life. While these stories are obviously extreme examples, what connected these parties was the initial thought in those cases that the other side would be reasonable. That is a common statement and one that we hear in our office on quite a frequent basis. Unfortunately, it does not always work that way. However, there are steps that you can take to ensure that both you and your lawyer are prepared for your case, no matter what form it takes. Below are a couple of suggestions which may assist you along the process. Continue reading

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unique-1-1209075By Michelle L. Searcy

In my most recent article, I discussed methods of your assuring separate property remains separate in terms of preserving good evidence for use in a dissolution of marriage (divorce) case.  However, Colorado statutes still define marital property as including increases in the value of separate property during the marriage.  Since often separate property consists of investment assets, this results not only in the difficulty in proving pre-marital value but in the possibility of being required to pay the other spouse their share of the increase in value.  In this blog post, I will discuss how parties to a marriage and/or divorce can avoid such difficulties through valid marital agreements. Continue reading

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hello-my-name-is-1244204-300x214By: Janette Jordan

There are two types of name changes that occur in a family law case: the restoration of the Wife’s name to her maiden name or other previous name and the changing of the name of a minor child in a divorce or custody case.

In a divorce case, if you are the party seeking to have your maiden or other name restored you should indicate such in either the divorce petition or the response, depending on your status in the case. That being said, you do not have to make the decision right away, but it helps to indicate from the beginning that this is something you are considering.  So long as you raise the issue with the court prior to the decree of dissolution entering you can change your name as part of the proceedings.  It should be noted that the other side has no say or control in terms of your requested name change.  Fortunately, statute (C.R.S. 14-10-120.2) also authorizes the filing of a request to restore a maiden name after the decree enters, should someone change their mind later on. Continue reading

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racing-2-1514432-300x226By: W. Curtis Wiberg

In a divorce case, a higher income earning spouse may be “on the hook”  to pay maintenance (alimony) and child support. There are divorces, however, in which this higher income earning spouse is in his or her sixties and nearing retirement age. Some dads have children when they are in their fifties, or later. In other cases, a divorcing couple, after a longer term marriage, splits up after their children are adults, thereby leaving spousal maintenance as the sole support issue to be determined.  The question arises in these cases as to whether that higher income earning spouse is going to be able to retire when reaching retirement age or whether the law requires that spouse to keep the income rolling in regardless of that his or her age.  Prior to changes in statute, there was already case law supporting the notion that there was a valid correlation between retirement and modifying support obligations. Statute now codifies such notions.

The Colorado Legislature has addressed this issue in C.R.S. 14-10-122, which states:

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unique-1-1209075By: Michelle L. Searcy

In Colorado, everything acquired by either party during a marriage is presumed to be marital property regardless of title or possession, with a few limited exceptions.  Section 14-10-113(2), C.R.S. lists those exceptions as:

 

 

 

  1. Property acquired by gift, bequest, devise or descent;
  2. Property acquired in exchange for property acquired in exchange for property acquired by gift, bequest, devise or descent;
  3. Property acquired by a spouse after a decree of legal separation; and 
  4. Property excluded by valid agreement of the parties.

Therefore, if your Great Aunt died and left you her car, it is your separate property.  If you trade that car in for another car of equal or lesser value, the replacement car is separate property.  A legal separation likewise protects your interest in property you obtained after the decree of separation is entered.  The final exception requires that the parties voluntarily entered into a marital agreement (post-nuptial agreement) that complies with all of the requirements of section 14-2-309 that was made at a time when the parties intended to remain married.  Regardless of exceptions, your actions can potentially lead to your separate property in a divorce being considered marital.  Continue reading

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denver-capitol-hill-1620432-300x199By:  Jessica A. Saldin

Starting August 8, 2018, there will some statutory changes being made to the Colorado Uniform Dissolution of Marriage Act (the main statute/law that governs Colorado divorce and custody cases).  As these changes may have major impacts on your divorce or custody case, it is important to know what they are.  A few of the statutes are undergoing minor word changes, which are not being discussed in this article.  The major changes, which will be the primary focus of this article, affect the statutes governing spousal maintenance and child support.

C.R.S. 14-10-114 is the statute that governs maintenance (often called spousal support or alimony).  As discussed in a prior blog post, the federal tax code is changing in 2019, with an impact on how maintenance payments are treated for tax purposes.  It used to be that a payor’s maintenance payments were tax deductible to the payor and a recipient’s maintenance payments had to be claimed on the recipient’s taxes as income.  Starting in 2019, the recipient will not have to declare maintenance payments as income; however, the paying party will not get a deduction for maintenance paid.  As mentioned in the prior post, such was anticipated to have an effect on Colorado’s maintenance law because the formula was created with the understanding that maintenance would be tax deductible and taxable, respectively.  As anticipated, the Colorado legislature has made changes to Colorado’s maintenance law to account for these federal tax changes. Continue reading

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ofcomm-series-collapsed-1533808-300x205By:  Michelle L. Searcy

Divorce can often create stress, anxiety, and even depression.   If you are going through a divorce or are even contemplating it, uncertainty about the future is bound to affect your mental health.  You may experience fear and anxiety about your income, your property, and your children.  Different people react differently to all of this stress.  The range of coping mechanisms spans healthier tactics, such as healthy eating and exercising to more risky behaviors, like excessive drinking or spending.   Regardless of your personal style of coping, you will need to make crucial, potentially life-altering decisions in the process of a divorce.  

You will need to be able to evaluate offers, determine whether and on what terms to counter-offer, or whether to present issues for the court to decide.  Stress, depression and anxiety do not only affect the way you feel, but also the way you think.  They can cloud your judgment, making it more difficult to make the best decisions possible.  Poor decisions may not only affect the outcome of your case, but increase your legal costs.  Thus, you may find it helpful to identify your level of stress, and then, determine how best to address it.  

Psychology Today published an excellent article in 2012 titled “Where are You on the Divorce Stress Scale?”   An honest assessment of the effects of divorce-related stress will help you determine how best to cope  to allow you to make forward thinking, productive decisions.  The Psychology Today article included excellent suggestions for coping with stress.  Other resources are also available, such as the Jane Collingwood article on Psychcentral.com, Reducing the Stress of a Divorce. Continue reading

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balance-1172800-300x204By: Curtis Wiberg

On May 21, 2018, the Colorado Supreme Court issued an opinion in the case of Parocha v. Parocha, 2018 CO 41. The case involved a wife who fled an abusive relationship in New Jersey, with her infant daughter, to reside in Colorado with her family. Once here in Colorado, the husband continued making harassing and threatening calls from New Jersey to the wife.  The question before the Colorado Supreme Court was whether Colorado could exercise jurisdiction against an out of state party, and issue a restraining order, solely on the basis of threatening and harassing contact received by the wife in Colorado, notwithstanding the fact that husband had not been physically present in Colorado.  The court ruled that the actions of husband in sending communications that were harassing and threatening to his wife in Colorado constituted acts that gave the Colorado courts authority to issue a protection order in Colorado against her Husband.  As such, the Colorado Supreme Court has given victims of domestic violence an important protection not explicitly existent previously. Continue reading