Strategically helping Colorado clients through divorce & custody cases

Articles Posted in General Family Law Knowledge

Published on:

courtroom-144091__340-224x300By:  Jessica A. Bryant

For many people in the midst of a divorce or custody case, it may be the first time they have ever been to court.  One looming question many people have is what to expect when attending a family law hearing– a large part of which includes what questions they may be asked when testifying.  This series of blog posts will explore potential questions you may face during a hearing on your Colorado family law case, with segments being presented by subject matter.

This Part 1 will focus on what questions may be asked in a hearing on maintenance (spousal support) and/or child support.  Part 2  will focus on what questions may be asked during a hearing on child-related issues (decision-making and/or parenting time).  Part 3 will focus on what questions may be asked during a hearing on issues of property/debt allocation, attorney’s fees, and other miscellaneous questions that may be presented.

For a hearing regarding spousal support and/or child support, one main point of focus will be each party’s income.  Therefore, many of the questions you may face during such a hearing will be on your income.  If you are employed some of the questions may be as follows: Continue reading

Published on:

meeting-room-1480575By: Jessica A. Bryant

Whether an initial divorce case, initial custody case, or a request to modify a prior custody or support order, you will generally receive an order from the court requiring you to attend a mediation session before the final hearing.  Mediation orders vary from county to county (for example, some counties require mediation before they will set your contested hearing, or even your first court appearance, whereas other counties just require mediation to be completed within a certain amount of time before the hearing).

However, one common requirement for mediation in every county is that parties must mediate “in good faith.” That requirement, though, is generally not defined anywhere in the order.  Therefore, people often question exactly what it means to mediate in “good faith.”   One very important thing to note is that good faith mediation does not mean you have to reach agreements. You are never required to reach an agreement at mediation. Mediation is a confidential process and if no agreements are reached all the mediator tells the court is that the parties appeared, mediated, and no agreements were reached. Continue reading

Published on:

cheque-in-american-dollars-1632213-300x200

By: Jessica A. Bryant

It is not uncommon for individuals to seek financial assistance when going through a Colorado divorce, custody, or modification case.   Oftentimes, individuals seek financial assistance to cover attorney fees, the cost of retaining experts, or assistance with other financial items related to their cases.  In other instances, people seek or receive help from family members or friends just to meet their needs, given the abrupt changes that come when families split up.   Whatever the circumstances under which a person might need financial help, it’s important to understand that help from others can have potential ramifications in your case, primarily tied into income, debt, or how costs might be allocated.   A few things  to keep in mind when seeking or accepting financial assistance from others while going through your family law case are as follows:

Continue reading

Published on:

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.

Published on:

hand-with-a-paper-1240142By: Jessica A. Bryant

When starting an initial Colorado family law case, the two first steps are filing the initial case documents (Petition and Summons) and getting the other party served.  Pursuant to the Colorado Rules of Civil Procedure, Rule 4, serving divorce papers generally comes in two forms: either the other party signs what is known as a Waiver and Acceptance of Service (acknowledging receipt of the documents and waiving the requirement for personal service) or the other party needs to be personally served (a sheriff or private process server needs to hand the initial case documents directly to the other party, to a family member over the age of 18 at the other party’s residence, or to the other party’s supervisor, secretary, administrative assistant, bookkeeper, human resources representative, or managing agent at his or her workplace).

However, the question sometimes arises, what is the next step if you do not know the home or work address of the other party? Many times, people simply decide to wait and not face the headache of trying to find the other person. Sitting back and doing nothing is generally not the best course of action to take, particularly in divorce cases.  As long as you remain married, even if you have been physically separated for years, any property accrued (real estate, retirement, bank accounts, etc.) is generally considered marital property (with a few caveats). Also, the longer you remain married, the more likely it is that the other party may be entitled to your Social Security benefits due to the length of the marriage. Finally, as the duration of spousal maintenance (alimony) is tied into the length of the marriage, the longer the length of the marriage, the longer a term of spousal maintenance could last. Thus, it is often recommended that you take the time to track down the other party at the time you are thinking of pursuing a divorce case, rather than wait several years and ending up with a longer term marriage. Continue reading

Published on:

CourtroomBy:  Curtis Wiberg

As your family law case progresses to trial, the risks of letting a judge decide the course of your life and/or your children’s lives becomes a huge factor to consider if you are in a contentious divorce or post-divorce proceeding.  No matter how strong you may perceive your position to be, taking a case to trial is always a gamble, and it is important to have the opinion of a lawyer with experience litigating to provide you the best information as to your best course.  Though some cases can be straight forward such that the outcome seems certain, others can have a murkier outcome, depending on the law and the facts.   Additionally, given the fact that each judge/court may view an issue differently, results can vary from courtroom to courtroom.

In any case, it’s important to know what the best case scenario of going to trial is, and the odds of that best case materializing.  Likewise, it’s important to know what the worst case scenario of going to trial is, and the chances of that worst coming to pass. Where a compromise falls on that spectrum between the two scenarios should be one of the major factors to consider when making the decision regarding whether to settle or go to trial.  Having an experienced attorney who knows the law, the judges, and the expert witnesses to inform you of the likelihoods of various outcomes can be extremely helpful in guiding you to the best decision. Continue reading

Published on:

Private eyeBy: Sarah T. McCain

Often in high conflict divorce or custody cases, a party will ask me whether or not they should invest in having a private investigator follow their spouse. While it may sound tempting, the majority of the time, the answer to this question is “no.” However, there may be instances in which a private investigator can be helpful.  When pondering the notion of a private investigator, it’s important to assess with your attorney when it is unnecessary and when it might be of assistance to your overall case.  The answer will certainly depend on the facts and circumstances at hand tied into what you are trying to prove.

The most common reason I hear people raise when thinking about hiring an investigator is the possibility of infidelity in the relationship. If you are looking to determine whether your significant other is having an affair, you may be looking at spending money that will not provide a benefit to the arguments you are looking to make in court.  Contrary to common belief, infidelity is generally not a factor the court is interested in hearing about due to Colorado being a no-fault divorce state.  Obviously there are exceptions to this general rule, but these are limited and should be discussed with an attorney.  Though hiring a private investigator to prove infidelity may help settle any lingering doubts about the state of your relationship, it’s not likely to be a good use of financial resources.   Continue reading

Published on:

law-education-series-2-1467427By:  Sarah McCain

In this day and age of on-line, check-the-box divorce forms, the general public is often left with the impression that handling a Colorado divorce case on their own is an easy process.   Sometimes it can be, such as when the parties agree on each and every issue (though I recommend always consulting with an attorney to make sure the i’s are dotted and the tee’s are crossed).   However, there are also instances in which people choose to represent themselves in contested Colorado divorce cases.   In these instances, people often go into the courtroom believing that somehow the court is going to guide them through the process or that they will be given certain breaks or concessions because they don’t have an attorney.   This is just not true.   I have had many cases in which the other party chooses to go to trial without a lawyer.    They are generally shocked to learn that the judge will hold them to the same standard as an attorney regarding procedure and rules of evidence.

When you file a divorce or custody case, or a modification, with the court, the paperwork that you receive from the Court (generally a Case Management Order) will often set forth deadlines and standards of practice.  A party without an attorney may wonder what this means for him or her and may fail to grasp all of the deadlines that exist. Unfortunately, there is not an easy-to-read manual which lays out everything that needs to be done, and when.  The Court does its best at advising parties to the extent allowed.  However, in complicated financial or parenting time matters, the basic information given by the court may not be enough to formulate an understanding of what really is required or needed to effectively litigate. Continue reading

Published on:

By:  Sarah T. McCain

stock-illustration-19023659-big-argumentIn Part 1 of this article, I discussed the positives of good communication between spouses during a dissolution of marriage or a custody case.  While a lot can be accomplished through maintaining amicable communications with the other party, it is important to know when communications have turned for the worse and when to speak up against those inappropriate communications. Unfortunately, often during any Colorado family law case, communication can take a negative turn, causing more anxiety and conflict for the parties.  I often tell clients that they may see the worst version of the other party while the case is pending. It’s important to be prepared in terms of how to handle negative communications for purposes of protecting both your interests in your case and your sanity.

First, name calling and obscenities are never appropriate, especially in those cases involving custody or visitation.  Upon receipt of such negative messages, it is easy to fall into the trap of wanting to respond in kind.  It’s important to remain level headed and to not respond in a like manner.  Often, these nasty messages do not contain vital information or requests and, therefore, do not require a response.  If a response is necessary, it is important to remember that all communications are potential exhibits which the court/judge might see at trial.  As such, it may be necessary to respond to those items that are necessary to respond to and to then simply ignore the insults and intimidation.  This can turn into a complicated situation wherein it is best to have a your attorney determine when, and how, best to respond to what may be deemed inappropriate communication.   If communications get to hostile, your attorney can always get involved, thereby ceasing the direct insults or hostile communications.  I’m always willing and ready to step in when needed, though hope to keep costs down by staying out of the fray. Continue reading

Published on:

By W. Curtis Wiberg

stock-photo-25889598-colorado-supreme-courtHaving handled divorce and custody cases for over two decades, including 14 years as a Colorado family law attorney, I have litigated more cases than I can remember.   Cases that don’t settle ultimately go to a hearing or “trial” in front of a judge or magistrate.   After a Colorado divorce or custody case goes to trial, it’s likely that one party will leave the courtroom feeling like they “lost” or weren’t heard or treated fairly.  Frankly, trial court judges sometimes do make mistakes. Recognizing that basic truth, the judicial process sets up a system where a judge’s mistake can be corrected. That process entails appealing a judge’s ruling to a higher court.

Proceeding with a Colorado appeal is a specialized process with its own sets of rules, procedures and standards.    As such,  if you are thinking about appealing a judge’s ruling or defending against an appeal, it’s important to find an attorney who has experience practicing in the appellate courts.

Generally, Colorado family law appeals are unsuccessful due to the standards of review employed by appellate courts. The standards of review grant a trial court judge a lot of leeway or discretion on certain matters. For instance, appellate courts have to find “clear error” on matters concerning the credibility of witnesses.  So if the appeal revolves around “why did the judge not believe me?”, the appellate court is unlikely to set that credibility determination aside unless the weight of other evidence is contrary to the judge’s finding. Similarly, if a statute or court rule gives the trial court discretion (as it does when fashioning an equitable distribution of property and debt, for example), the appellate court cannot overturn that award unless it finds the trial court committed an “abuse of discretion.”  The same holds true in cases dealing with custody or visitation (parental responsibilities).  Keep in mind that with discretion comes a range of outcomes which are not uniform.  A judge in a Douglas County divorce case may rule completely differently on a topic from a judge in an Adams County case.    Differing rulings or results do not necessarily equate to judicial error.

Continue reading