Strategically helping Colorado clients through divorce & custody cases

Articles Posted in Divorce

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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

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gavel-5-1236432-300x200By Michelle L. Searcy

Whether you have been served with a family law case or have initiated one, in Colorado, your first court appearance will be an initial status conference.  While the purpose of this meeting is to give you important information about your responsibilities in the case, it is also your opportunity to request a Temporary Orders hearing.

The purpose of Temporary Orders is to preserve the status quo and assure that financial and parenting issues will be temporarily resolved while the case is pending.  Whether to ask for a Temporary Orders hearing requires an honest assessment of your circumstances.  If you are married, do you earn enough money to pay your bills with or without help from your spouse? If not, do you have access to enough marital money to pay the bills?  Who will remain in the house?  How will you share time with the children?  If you are both in agreement on these types of issues, you may not need a Temporary Orders hearing.  To protect those agreements, you may submit those agreements in written form, asking the court to make them enforceable orders. Continue reading

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pensando-1499844-300x200By: Stephen J. Plog

Having practiced family law in Colorado for over 20 years, I’ve seen many situations in which one party or the other in a divorce case has, or both have, changed their mind about an aspect of the divorce case, including whether to proceed with the case at all.   In a divorce case, until something is put into writing and signed off on by the presiding judge as an order of the court, there are opportunities to have a change in tune, or of heart, in terms of how to proceed.   However, it should be noted that the consequences of changing one’s mind differ depending on the decision sought to be undone.  To phrase it differently, while opportunity exists to entertain various changes in mind along the path of your divorce, there are some decisions you may not be able to undo, such as changing your mind regarding the property settlement aspects of a properly executed and adopted separation agreement.

One of the more common changes in mind a person going through a divorce might have ties into actually following through with the case.   Over the years, I have seen more instances than I can remember in which one spouse decides they are ready to file.   The divorce case gets filed and then that person changes their mind.   Sometimes this happens prior to the other party being served with the divorce petition and summons.  In those instances, the case can simply be voluntarily withdrawn or dismissed, pursuant to Colorado Rules of Civil Procedure, Rule 41, without even needing to notify the other party.   If the other party is served, that’s a different story.  In those instances, for the divorce case to be dismissed, both parties must agree that the case should be dismissed and must file a stipulation with the court reflecting such a conclusion.  If the second, served spouse wishes to proceed, the case will continue despite the first party changing his or her mind.   I have seen many cases mutually dismissed, with the parties wishing to attempt reconciliation and perhaps realizing that they jumped the proverbial gun on proceeding down the divorce path.    Continue reading

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dow-jones-2-1458944-300x226By: Jessica A. Saldin

When proceeding through a divorce case in Colorado, there are sometimes unique property items that raise special questions when it comes to the treatment of those items for division purposes. For example, trusts, business interests, PERA accounts, etc. all have unique aspects which have been discussed in previous blog posts.  Another property item that has unique qualities is stock grants or stock options in a divorce.  Depending on the status of those items, they may not even be considered a property item that is up for discussion.  If the stock options are vested, they are considered property and would then be divided as any other property item (i.e., is it marital or separate, if marital how is it going to be divided to reach an equitable distribution- see prior blog posts on the determinations of marital v. separate property and how marital property is divided). Continue reading

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mock-credit-card-1-1204846-300x196By:  Sarah T. McCain

In every Colorado divorce proceeding, the court will require each party to complete and file a Sworn Financial Statement.  This requirement regarding financial disclosures in a divorce comes from C.R.C.P. Rule 16.2. Among the variety of items that you are required to list on that SFS is debt, including both marital and separate debt items. This includes, but is not limited to, credit cards, student loans, outstanding tax obligations, and medical obligations. On this document, it is important to list all of your debt so that the court is able to properly divide all of the marital debt that has been incurred during the marriage. One question that attorneys get in these cases is whether the debt is joint marital debt which should, thus, be divided. It is a common question and one that is derived from a common misconception that if the debt is not in your name, it is not marital. This is not the case in most situations. 

There are some debts that do follow this standard for the most part. Specifically, student loans are generally something that go with the party who incurred the loan for the purpose of their education. The student is usually the one that is benefitting from the education and thus, the debt goes with them. Of course, nothing is so black and white. There are circumstances when a student loan can be divided as marital debt. When a student loan obligation is incurred during the marriage, the court does have the authority to divided the student loan obligation between the parties.  In doing its analysis, the court may look at things like whether proceeds from the loan were used for marital expenses, such as mortgage or utilities.  A court might also consider whether that loan ultimately benefits both parties financially in that the loan may have led to a degree, which led to a better job, which may impact the spousal support or alimony the other party pays or receives.   Therefore, though the norm might be to have the person incurring the student loan be responsible for paying it, courts can divide student loan debt and may do so in certain circumstances. Continue reading

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school-4-1514478-300x226By:  Jessica A. Saldin

There are many issues related to education and school that must be considered as part of a divorce case.  Prior blog posts have discussed some of these issues.  This post is specifically focused on private schooling and how the issue may be treated as part of your divorce case.  There are several questions that you may have if you are considering private schooling for your children while going through a divorce.  

One of the first questions may be, “can I enroll my children in a private school?”  This question is related to general questions about educational decision making responsibility.  Courts in Colorado tend to find that joint decision making responsibility is in a child’s best interests unless there are specific circumstances that cause the court to find otherwise (for example, in situations of domestic violence, if one parent refuses to communicate regarding decisions, etc.).  Therefore, if you already have orders delegating educational decision making responsibility, the decision of the school in which you enroll the child must be made in accordance with the delegation in your orders.  If you do not have orders regarding decision making, it is always best to try to reach an agreement with the other parent.  Even if there is not an order requiring joint decision making responsibility, courts prefer to see parties that try to reach decisions jointly.  Simply making a unilateral decision can adversely affect the decision making orders the court eventually enters.  However, you also need to keep in mind that, if you are requesting sole decision making responsibility because of domestic violence, lack of responses from the other parent, etc., if a joint decision is made on the issue that could be considered by the court as evidence that joint decision making responsibility is best for the minor child. Continue reading