Strategically helping Colorado clients through divorce & custody cases
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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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globe-1419902By: Sarah T. McCain

When you commence either a divorce case or a child custody case in Colorado, you will inevitably hear the word “jurisdiction.” Though this term is mentioned in more detail in other blog posts, in summary, the term is referring to personal and subject matter jurisdiction. To acquire personal jurisdiction in Colorado, there must be service in Colorado, the other party agrees to have their matter heard in Colorado, or long arm jurisdiction applies.

To acquire subject matter jurisdiction in a divorce, the court must find that one or both of the spouses has lived in the state for a period of 91 days prior to the case being filed. This is pursuant to C.R.S. 14-10-106 and 107. Jurisdiction for child custody cases in Colorado and most states (Massachusetts is excluded) is determined by the Uniform Child Custody Jurisdiction and Enforcement Act found in C.R.S. 14-13-101. This is most often referred to as the “UCCJEA.” For custody cases, only subject matter jurisdiction is necessary, which is acquired when a child resides in Colorado for 182 days, or more.  The citizenship or immigration status of a party is generally not relevant to determining jurisdiction in either a divorce or a custody case.  When dealing with international child custody issues and a child taken out of the U.S., both state and federal laws may be needed to get that child back.  Continue reading

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watching-time-1238392-300x226By: Michelle L. Searcy

Often, the longer the marriage, the longer the duration of the obligation to pay maintenance (alimony).  As a result, one party in a divorce may still have many years of support to pay, even as he or she approaches retirement age.  Unless that maintenance obligation is contractual and non-modifiable, the person owing a duty of support may have a basis to seek modification of the term and amount of maintenance.  Since contractual, non-modifiable maintenance requires the parties to agree to that aspect of maintenance, any orders that do not clearly state this condition are modifiable.

Modifying maintenance places a heavy burden on the party seeking to modify to prove that a substantial and continuing change of circumstances has made the previous order unfair.  If you have reached full retirement age and are, in fact, retiring in a manner where your retirement income will not be sufficient to pay maintenance and your living expenses, your chances of modifying or terminating maintenance are good.  If you are retirement age, but still continuing to work full-time, you may find it more difficult to change maintenance.

Some professions allow for early retirement.  In Colorado, as relates to retirement, a person owing a maintenance obligation shall not be considered underemployed if: (1) the decision was made in good faith without a motivation to decrease or eliminate maintenance, and (2) the decision was objectively reasonable based on the particular circumstances of the party seeking to change the obligation.  These factors include, the person’s age, health and the usual practice in the industry of the obligor.  This standard was established in the 2008 Colorado Court of Appeals case,  In re Marriage of Swing, 194 P.3d 498.  The standard also applies to a recipient of maintenance who takes an early retirement and seeks to increase maintenance.  Swing established that modification cannot be denied solely on the basis that the otherwise objectively reasonable decision disadvantages the person receiving maintenance. Continue reading

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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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reporter-tools-2-1560026-300x226By: Jessica A. Saldin

Whenever there are custody issues in your family law case, one question to always consider is whether a CFI or PRE would help your case.  Prior blog posts have explained what these individuals are and when they may be helpful.  Once they are appointed to the case, though, it is natural to question what to expect after that appointment.

The very first step is to make sure the expert is made aware of their appointment- you need to make sure that someone sends the order of appointment to the expert.  The court does not typically do this, so either you or the other party need to email the order over to the expert to make sure they are aware of the appointment.  With the order, the expert also typically likes to receive any pleadings related to parenting time or the relevant issues (i.e., any prior orders, parenting plans, agreements, motions, responses, replies, etc.).

Within seven days of their appointment, these individuals must disclose whether they have any familial, financial or social relationships with any of the parties to the case, the attorneys on the case or the judicial officers on the case.  Once you receive this disclosure, if the Child and Family Investigator or Parental Responsibilities Evaluator has disclosed any type of relationship, you have seven days to object to that expert on the basis of the information in the disclosure.  If you do not object within seven days you have waived your ability to object to their appointment on the basis of that information.  If you do object, the court will then decide if someone else should be appointed or if the information does not rise to the level of needing to remove the expert. 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