Family Law, Divorce, Custody and Child Support Attorneys in Colorado Springs, Colorado

Where’s My Courtroom?

A person preparing to file a family law case has a lot of issues on his or her mind. These vital issues include future parenting time schedules for any children, living arrangements, maybe even domestic violence issues, et cetera. Naturally, a person may not consider an important threshold question when filing a case: Where’s my Courtroom? Specifically, which county, and possibly which state, do I need to file my case?

When I first started practicing family law, every now and then I would receive a call from a potential client, eager to tell me his story about the marriage, the children’s needs, and his goals at the commencement of his divorce case. Twenty-five minutes later, he starts talking about how much better off the kids will be at their new Colorado school near his new residence compared to the school district where Mom remains living. Where did he live before? California. When did he move to Colorado with the kids? One month ago.

That’s a problem. Mr. Dad just invested half an hour of his time with me going through painful experiences in the forefront of his mind; however, he will probably need to do so again, with an attorney licensed in California.

An individual filing a family law case must always consider the issue of jurisdiction. A Court must have jurisdiction of a case to properly hold a hearing and issue rulings. An overall discussion of the different types of jurisdiction is beyond the scope of this article, and quite frankly, uninteresting to most who simply need to figure out where to file his or her case.

However, there are a few things to keep in mind. First, when consulting with an attorney initially, make sure that at the top of your checklist is an inquiry about where the attorney believes you should file your case. He or she will ask you questions, and help you to determine where to file. For example, if you have lived in Colorado for the entire marriage with a 10 year old child, you may think the obvious place to file your divorce case is in the county you reside, in Colorado. But what if you and your spouse have been physically separated for 1 year, and he moved to another state with the intent to live there if your marriage cannot be reconciled? Then, he files a divorce case where he now resides. He made a mistake, right? Not necessarily. By statute, Colorado would have the jurisdiction to decide matters concerning the child; however, the other state’s law may afford him the right to file there to handle all the other non-child-related issues in the divorce. Therefore, one of the first, if not the first, considerations is to make sure that you work with an attorney to resolve the question of where your case should be filed.

Where’s My Courtroom?

While navigating through the legal system in a family law matter can be grueling for either party, fathers have their own unique challenges.   Having had the opportunity to represent fathers  in family law cases in Denver and Colorado Springs, I can appreciate the problems many of them must confront in a system that has not always appeared to be gender neutral.  Because of the situations many men find themselves in, it is always a good idea to talk to a family law attorney as early as possible, even if only to get some correct information in how to deal with the many issues men must confront.  Many men, however, suffer silently and then find themselves having to react to events that can, at least initially, compromise their rights as a father.

Although every case is different, an all too typical case is when a man comes to an attorney’s office once he has been served an Emergency Temporary Restraining Order.  This is Order comes about when the opposing party files an Emergency Petition in court without notice to the other side alleging that some threat or danger exists where she and/or the children need protection.   The Order has powerful remedies and can result, among other things, in the father not being able to see his children as well as his being kicked out of the home.  These Orders are often granted despite the severe remedies and lack of due process to the opposing party.  It is understandable that a judge would want to err on the side of caution; what if the one case presenting itself is the one case could turn out to be a horrible tragedy which could have been avoided with an issuance of Temporary Restraining Order.  While it is unequivocal that these Temporary Restraining Orders are essential in some cases, it does appear that some parties may use this very powerful tool as a way to gain an unfair advantage, especially when a divorce or other type of breakup appears imminent.

While the law does require the courts to conduct a full hearing soon after these Orders are entered which allows the man to tell his side of the story and to have the opposing party subject to cross-examination, by then he is in a more vulnerable position.   He has been out of the house and away from the children and often feels completely displaced and is trying to recover from the shock.  In my experience, within a reasonably short amount of time, I have been able to “undo” some of the damage that has occurred to bring things back to a level ground for the client; however, it is a source of stress and some expense that many clients would have preferred to avoid.

It would behoove fathers and men to come see a family law attorney at the very hint of domestic strife,  if only to get good information and to work on a proactive strategy with a legal representative that can  help them look forward and focus on what it most important.    Depending on what is going on in the household, men need to be wary of any disagreements or arguments that could lead to an allegation against them that could trigger a Temporary Restraining Order.   If the police are called, often men are not believed and then the wheels could be set in motion for a criminal or civil complaint that can put the father in an unfair advantage, causing further emotional and financial stress. 

Many law firms, such as ours, provide free consultations which can be worth their weight in gold.   By getting good legal counsel before things fall apart, a father can set up a workable strategy before any major problems unfold.  This will enable the father to focus on his child (ren) and other important matters without falling so readily into the raw emotions that often accompany this stressful period.   Once these systems are in place, the parties will have a workable structure to move forward in a healthier way for themselves and for their children.

The Unique Challenges Fathers Face in Family Law

Clients faced with parenting time issues often ask where the court’s loyalty lies when it comes to who gets custody – does the court favor mom or dad? Today, the term “”custody” has been replaced with “parenting time”, and it’s not just the terms that are changing with the times. Although fathers are often quick to raise a suspicious eyebrow, the answer is the same no matter who asks the question. Colorado Courts are remarkably gender-neutral, and the most important factors used to determine which parent is entitled to more parenting time really depend on each family’s specific facts.

Mothers may seem as though they have an advantage before the court in terms of parenting time because moms tend to be the primary caretaker in the household, especially in terms of caring for infants and younger children. However, having a stay-at-home mom is no longer the norm. In many Colorado homes, the economy has forced both parents into the workforce, or in the alternative, fathers are taking off their ties and pushing up their sleeves as stay-at-home dads.

So how does the court decide who gets how much parenting time? The standard the court uses, and which every parent should plant firmly in their head, is that of the best interest of the child. The court gives principal consideration to the child’s physical, mental and emotional needs. Courts also want to encourage frequent and continuing contact between each parent and the child.

By Colorado statute, the court considers a myriad of factors for establishing parenting time, including, but not limited to: the parents’ wishes, the child’s wishes, the child’s involvement with family, school and the community, the ability of the parents to encourage the sharing of love and affection between the child and the other parent, the health of the parents and the child, and which parent has primarily cared for the child in the past. Other factors the court will consider are whether one parent perpetrated spousal or child abuse, or abused drugs or alcohol.

The best parenting schedule really depends on each family’s particular situation. In a great many cases, splitting a child’s time equally between parents may be the best thing for a family going through a divorce. Depending on the proximity of each parent’s home, it may be in the child’s best interest to have portions of the week split between each parent, such as the child spending school nights at one parent’s home and weekend nights with the other parent. Splitting parenting time during the week gets significantly more difficult the farther apart parents live. That distance may warrant a parenting schedule where the child lives with one parent during the school year and the other parent during vacation time.

Whether parents are able to reach a parenting schedule negotiating and agreeing between themselves, or whether parents require a court to help make those decisions for them, each parent should understand that their children are not something to be won or lost in the divorce.

If you are considering a divorce or separation, consult a family law attorney experienced in parenting schedules to advise you as to what kind of plan would best suit your family’s needs.

Mother’s Rights and Parenting Time: Do Moms Have the Advantage in Colorado Courts?

Individuals facing the dissolution of marriage process often seek to have spousal maintenance awarded to him or her. There are many reasons for wanting to be awarded spousal maintenance, but perhaps the most common reason deals with a disparity in income between the parties. For instance, it is not uncommon for the parties to agree that during the marriage, one party will forego a career, or work part-time, in order to raise the parties’ children and the other party will be the primary “breadwinner.” It is perfectly acceptable for the parties to have defined each other’s role in the marriage. However, it is also understandable that the parties’ may not have considered the long-term ramifications of this type of decision. One of those ramifications may concern how each party will support himself or herself after the divorce is finalized.

As such, the party who cared for and maintained the home and raised the children may have surrendered his or her career to do so. Further, if this was your agreement during the marriage, and suppose you were married for 15 years, you suddenly have to devise a plan to make ends meet on your own. In this instance, you will very likely be seeking spousal maintenance and will have two options: statutory and contractual.

Statutory maintenance is the type which is awarded by the Court. The Court may award maintenance for such amounts and for such periods of time that the Court deems just. The Court will consider several factors, set forth in C.R.S. § 14-10-114, including the financial resources of the party seeking maintenance, which may include marital property apportioned to him or her; the time necessary to acquire education or training sufficient to enable to party who requests maintenance to find suitable employment, as well as his or her future earning capacity; the standard of living established during the marriage; the duration of the marriage; the age and physical and emotional condition of the spouse seeking maintenance; and the ability of the other spouse to meet his or her needs while paying maintenance to the requesting spouse.

Contractual maintenance is the type which results in the parties reaching an agreement about how much maintenance will be paid, and for what duration of time, to the requesting spouse. This may be beneficial to the parties, as it takes the matter away from the Court to decide and eliminates the uncertainty as to what the Court may or may not award. It may also be beneficial because the parties may agree that the contractual maintenance is never modifiable by a Court. Ever. Whether maintenance is awarded  by the Court pursuant to statute, or contracted for between the parties without clear language designating the maintenance as non-modifiable, the general rule is that maintenance is modifiable upon a showing of changed circumstances so substantial and continuing as to make the terms unfair.

Spousal Maintenance: Statutory or Contractual?

All too often one or both parties in a divorce action have criminal backgrounds or have open criminal cases.  These criminal cases can often play a significant role in divorce proceedings.  They can impact the allocation of marital property and more importantly, impact the allocation of parental rights and responsibilities.

The influence criminal cases have on the allocation of marital property is more straightforward.  A party to a divorce proceeding who hires a criminal defense attorney to represent them in a criminal proceeding is usually charged with the legal fees.  In other words, using marital funds to pay legal fees is often considered a misuse of those funds.  In such cases, the opposing party is often given credit when the court allocates the marital debts and assets.  For example, a debt to a criminal defense attorney will likely be entirely allocated to the party who incurred the debt.  In the alternative, that same party may forego an allocation of marital assets equal to the amount of funds spent on legal fees.

Perhaps the more complex and damaging effect of criminal cases occurs in the allocation of parental rights and responsibilities.  The level of damage is generally determined by the nature of the charges, the number of cases, and the outcome of those cases. 

• Nature of charges.

Parties charged with domestic violence, sex crime, drug/alcohol, assault, child-related and other similar crimes will face the most difficulty in acquiring parenting rights and responsibilities.  The consequence of these charges may often lead to restricted parenting time.  The restrictions may also include supervised parenting time, monitored sobriety, therapy, etc.

• Number of cases.

Generally speaking, the more cases a person has been a party to, the more problems they will have in a divorce proceeding.  Multiple cases involving the same or similar charges will be additionally problematic. 

• Outcome of cases.

A person charged with a crime will have less difficulty than a person convicted of a crime.  However, a person acquitted of a crime will not necessarily avoid problems in their divorce proceeding.  First, let’s take the case where a person is charged with a crime.  Generally speaking, a party is presumed innocent until proven guilty.  However, police reports, forensic reports and other investigative reports may be used in divorce proceedings to help the court make determinations with regard to parenting rights.  It is important to note that the burden of proof in a criminal case is beyond a reasonable doubt.  However, the burden of proof in a civil case, such as a divorce proceeding, is by a preponderance of the evidence.  The civil burden is lower than criminal burden.  Therefore, pending the ability of a prosecutor to meet the burden of proof in a criminal matter, the same evidence may facilitate the meeting of the burden of proof in a civil divorce matter.  This same theory can be applied to the case in which a person is acquitted.  The prosecutor may have failed to meet the criminal burden, however, the burden may be met with the same evidence in the civil divorce proceeding.  It’s easier to see that a person convicted of a crime will have the most difficulty because the prosecutor has already met a higher burden than would otherwise be met in a civil proceeding.

When a criminal matter is open at the same time as a divorce proceeding, the person charged with a committing a crime may often have the ability to diminish the negative impact the criminal matter will have.  Prosecuting attorneys will often extend offers or plea bargains to the person charged.  These plea bargains should be carefully evaluated for the suspected bearing they will have on an open divorce proceeding.  For example, a plea of guilty to disturbing the peace will have less impact than an original charge of assault.  A charge of domestic violence is often one of the most damaging charges a person can face in the allocation of parental rights and responsibilities. 

There are several circumstances in a divorce case that can pose obstacles or alternatively, help undo the damage done.  Examples of obstacles include, evaluations often performed by professions such as sex, drug and/or alcohol evaluations.  Endeavors that help undo the damage may include parenting classes, individual or group therapy, monitored sobriety, etc.

Whether you are the victim, defendant, or spouse of a defendant, it is important to recognize the effect criminal cases can have on divorce proceedings.  An experienced attorney can explore the options and advise client on methods of approaching the effect of criminal cases.

Criminal Cases and Divorce

When a party files a dissolution of marriage action, often times they will reach an agreement concerning the allocation of the parties’ property, including their assets and debts. This is known as a Separation Agreement and it may also contain a provision concerning spousal maintenance. This is referred to as “contractual” spousal maintenance.

Imagine that the Court issues a Decree for Dissolution of Marriage. Subsequently, imagine that the parties decide to reconcile their relationship and might even move in together. So what happens to those provisions set forth in your Separation Agreement? Largely, this will based upon the time frame specified in the Separation Agreement that provides for when certain events must happen. For example, the agreement may provide that “within thirty days of the date of the Court’s issuance of a Decree for Dissolution of Marriage, the Petitioner shall sign over the car title to Respondent.” In this situation, whether that provision of the separation agreement is still in effect will likely depend upon whether this provision has been satisfied prior to the reconciliation. However, if your separation agreement addresses on-going obligations, such as the monthly payment of spousal maintenance, whether that provision is still in effect is not as cut and dry.

The Colorado Court of Appeals has consistently held that reconciliation does not automatically terminate a property settlement; however, in determining whether a reconciliation has terminated a property settlement agreement, the trier of fact must ascertain from the evidence whether the parties intended to revoke the agreement upon reconciliation. Morrell v. Morrell, 687 P.2d 1319, 1322 (Colo. App. 1984). Moreover, the burden of attempting to prove that the reconciliation did not terminate the agreement lies with the party arguing for this proposition.

The portions of the separation agreement that have not yet been fully executed are those which may be terminated upon the parties’ reconciliation. This is important to keep in mind if you are intending to reconcile with your former husband or wife. Should the reconciliation head south, the likelihood that the party who was supposed to receive maintenance or other property pursuant to separation agreement may very well try to obtain those payments or his or her share of property.

Therefore, it is important to make your intentions known, just to be on the safe side. If you and your former spouse intend to reconcile, and you are still on the hook for making payments or transferring property pursuant to the separation agreement, it may be wise to put those intentions in writing. For good measure, and depending on the circumstances, you may want to file your intentions with the Court.

The Effect of Reconciliation on Separation Agreements

Several weeks ago, I attended a two-day training seminar about Collaborative Divorce. I didn’t know much about it except what I had heard outside the legal world. I remembered hearing the term in the movie “Juno” – that it is a divorce process that is “all the rage right now”. I also remembered hearing celebrity Robin Williams recently divorced his wife of 19 years through the collaborative divorce process. I knew collaborative divorce was considered an alternative to the nightmarish courtroom battle that most Americans think of when the subject turns to divorce.

As I soon found, many lawyers and people in the legal field believe collaborative divorce is not truly practicing law, or is a ‘soft approach’ to divorce. However, listening to experts of this budding field of family law, I found it to be an interesting, almost refreshing, alternative to the courtroom battles. In this process, the parties agree that they want to proceed with a collaborative divorce, and each retain a separate attorney trained in the collaborative divorce process. Both parties must agree that, if the collaboration fails, the parties will retain entirely new counsel and proceed with the traditional divorce process.

The beauty of collaborative divorce is this: the couple must work through their demons with trained professionals, such as professionals in mental health, child specialists, financial specialists and a mediator. This entirely open process gives each client the opportunity to address the issues most important to each of them. The parties are free to create their own solutions and can address issues that are most important to them, not just what a judge believes to be legally significant.

The collaborative divorce process has the potential to create healthier families post-divorce. The focus is on forward-thinking solutions, and the process can go as quickly or as slowly as the parties require. If children of the marriage exist, each parents’ concerns are addressed openly with the facilitation of child specialists, and parties have the opportunity to put the best possible paths in place for parental decision-making, responsibilities and scheduling.

The client’s attorney participates in a slightly different manner, but like both the traditional divorce process and the collaborative divorce process, the client’s attorney ensures the client is well-informed of their legal rights and the legal implications all decisions could have. Attorneys also assist their clients through this sometimes emotionally-taxing process by facilitating and encouraging solutions that the attorney can then draft into an agreement for the court. As difficult and uncomfortable as this process may seem, the end result is a divorce with better communication and understanding between the parties.

Who cares whether or not you can communicate with your ex? You should. Post-decree matters can be as expensive as the initial divorce, and the additional stress of combating your ex-spouse for years to come is not appealing to many – it’s like a never-ending divorce.

Its important to note that collaborative divorce isn’t for everyone. To determine if a collaborative divorce is right for you, contact a family law attorney trained in collaborative divorce.

Collaborative Divorce – Creating a Resolution that Works

Attorneys are contacted regularly regarding the procedure and cost of getting a divorce in Colorado.  However, clients often fail to consider the emotional, physical and mental impact the process has on them and their children.  The divorce and allocation of parenting rights and responsibilities processes are stressful in and of themselves.  Often times the conduct of parties during the processes can add unnecessary conflict and stress to their domestic case.

Courts attempt to shelter the parties from unnecessary stress by issuing an injunction restraining the parties from harassing, disturbing and maligning each other.  However, the parties often ignore the Court’s order.  Attorneys are left trying to enforce the Court orders through Motions for Contempt or alternative measures.  The proceedings for contempt are costly endeavors but are often the only adequate method to address alleged violations of the injunction, or any other Court order for that matter.  Contempt of court is a crime punishable by remedial or punitive damages in Colorado, including possible fines and imprisonment.

There are a number of factors which further complicate domestic cases including but not limited to:  financial disclosures, discovery, investigations, evaluations, therapy, and more.  Each comes with its own level of stress and complexity.  Too many times, clients are left choosing between their sanity and their real priorities because of the stressful process.

Perhaps the most disturbing issues arise when parties engage in negative or destructive behavior.  Examples of such behavior include conduct that the Court may deem vexatious or frivolous.  It is important to recognize that the court may award attorney’s fees and costs to parties who are forced to litigate vexatious or frivolous conduct.  Such conduct can include the filing of petty motions or delaying or interfering with the Court process.

It is important to prepare yourself for the stress that comes with any domestic case.  Clients who expect significant conflict or bad behavior can also expect additional stress.  The stress can often be unbearable.  Clients are often advised to seek individual therapy or take up stress relieving activities like exercise and personal hobbies.  There is significant data regarding the impact of divorce on families available here or on a host of other websites.  For more advice on addressing the impact in your specific situation, be certain to consult a professional.

The Stress of Divorce

In the practice of law, there are, oftentimes, situations where the other party fails, or refuses to participate in the proceedings. This most commonly occurs in domestic relations law relative to other types of practices. While the reasons for lack of participation are many, different Courts will address this lack of participation in a variety of ways.

Occasionally, Judges and Magistrates will offer an extended opportunity for a party to get on board and begin to participate but most often, the Court will expect the same level of performance from an attorney or an unrepresented party. This includes meeting the Court’s deadlines, completing financial disclosures, and responding to pleadings.

When an opposing party does not respond to a Petition, Complaint or Motion, they are in default.  As a case progresses forward, it is more and more difficult for a party in default to catch up. Simultaneously, the moving party has less time to acquire the information necessary to prepare for hearing.

Ultimately, when a party is in default, the Court will set the matter for a default hearing. Rather than a one-half day hearing, or even a full day hearing, the Court is more prone to set the matter for a thirty minute hearing. Where Judges and Magistrates differ, is on what will happen at the default hearing. Depending on the nature of the proceeding, the Court may request that the moving party testify on the stand about what they want and why they want it. Therefore, your attorney needs to be fully prepared, just as if it was a hotly contested hearing. Frankly, it takes a significant amount of time to prepare for testimony, to make exhibits and prepare documents. Often, clients may be frustrated with the costs associated with trial preparation, especially when they know the other party will not show up for the final hearing.

This is especially the case when the Court determines that because it is a default hearing that hearing the testimony of the party and reviewing exhibits is not necessary. Occasionally, the Court will simply request that your attorney to provide the Court and offer of proof. An offer of proof is when the attorney states to the Court, what their client would say if they were to testify. While this is the most efficient use of the Court’s time, it does often frustrate clients because they do not have the opportunity to speak and because those exhibit notebooks which were prepared for the Court are not used. Although it does not change the outcome, it seems to the client that it is not an efficient use of their attorney’s time. Finally, after the hearing is complete, the Court will generally require your attorney to draft a written form of the Order of the Court which comports with the Court’s Default Order. This is the most essential aspect of the process because the final Order needs to be complete, accurate, and properly served on the party in default so that they have proper notice.

Default Hearings

If you have filed for divorce and are now wondering what the next step is, the following addresses what you can expect to happen in the early stages of the divorce process.

The commencement of a dissolution of marriage case occurs when one party, referred to as the Petitioner, files a Petition for Dissolution of Marriage, Summons, and Case Information Sheet.   The filing of these initial pleadings grants the Court jurisdiction over the Petitioner in the case.  However, the Court does not have jurisdiction over the person whom the Petitioner is divorcing, referred to as the Respondent, until personal service upon him or her occurs.  The preferred entities to use in order to accomplish service include a private process server or a deputy from your local sheriff’s department.

Regardless of whether the Petitioner has accomplished personal service over the other spouse, the Court will issue a Case Management Order shortly after the initial pleadings are filed.  The Case Management Order is very important and should be read closely by both the Petitioner and Respondent, collectively referred to as the “parties.” Among the many provisions set forth in the Case Management Order, some of the most important include the date and time for your Initial Status Conference and timeline for exchanging mandatory financial disclosures.  If the Petitioner and Respondent have children together, then the parties should pay close attention to the portion of the Case Management Order that provides instructions for completing a parenting class.

So what happens at the Initial Status Conference?  The Initial Status Conference is a Court date, and both parties are required to appear.  Every jurisdiction conducts its status conferences pursuant to its own procedures.  In some counties, magistrates conduct the conferences; in others, the family court facilitator will conduct the conferences.  The clerks who work for the Judicial Officers may also conduct the status conferences.  Whether you appear before a magistrate, court facilitator, or clerk may depend upon whether either party is represented by an attorney.

Despite where you filed for divorce and whom you appear before for your conference, the same common issues are frequently addressed at all conferences.  Mainly, the Court wants to know what the “status” is of the case.   The questions you are likely to be asked concern whether the parties have exchanged the mandatory financial disclosures; whether the parties have completed their parenting class, if children are involved; and whether the parties believe they will be able to resolve their issues amicably or whether any issues will be contested.  The Court may ask whether the parties intend to attend mediation to resolve any contested issues. 

Overall, while the Initial Status Conference is an actual court date, the purpose of the conference is, quite simply, to determine the status of the case.    The best way to prepare for an Initial Status Conference is to complete your financial disclosures and parenting class prior to appearing for you conference.  It is important to think about the issues that you and the other party are facing, such as allocating parenting time, dividing assets and debts, spousal maintenance, and child support.   While having to appear in Court may seem intimidating, being prepared will certainly assist you and help the process go smoothly.

The Initial Status Conference and Early Stages of the Divorce Process

“Marital fault” (also referred to as “marital misconduct”) is a phrase frequently used when one spouse places the blame for a marriage not succeeding on the actions of the other spouse. Colorado courts are not permitted to consider marital fault upon distribution of assets or debts during a dissolution of marriage action. C.R.S. §1 4-10-113. However, Colorado courts have held that should a party to a dissolution of marriage proceeding deplete an economic resource of the marriage, they court may consider such “economic fault” during its division of assets.

Generally, only the marital property existing at the time of the dissolution of marriage is available for distribution between the spouses. The only exception is that a court can value marital property that has been dissipated as of the date it still existed.

The concept of depleting the economic resources of a marriage may seem straightforward. However, pursuant to the temporary injunction that goes into place once a petition for dissolution of marriage is filed with the court, and subsequently served on the other party, both spouses are permitted to utilize the assets of a marital estate for “reasonable and necessary” living expenses.  As the Court may consider the economic fault of a party based on actions committed prior to and after the commencement of the divorce, the line between reasonable spending, and depletion to the extent of economic fault, may blur easily.

The concept of economic fault is more widely applied to situations that occur prior to the commencement of a dissolution of marriage action. For instance, in In re Marriage of Hunt, the Court of Appeals stated that “’economic fault’ is a limited concept which comes into play only in extreme cases such as the spouse’s dissipation of marital assets in the contemplation of divorce.” 909 P.2d 525, 542 (Colo. 1995).

The divorce process is often emotional and stressful. The period of time leading up to the commencement of a divorce action is sometimes even more trying. Individuals who are typically cool-headed may make rash decisions during these times. Actions by one spouse that are deliberate and committed under circumstances where the other spouse is not consulted or given the potential to mitigate potential damages, can be considered as economic fault by the Court. One situation where the Court differentiated between marital fault and economic fault occurred where a husband stopped making lease payments on a business lease owned by husband and wife. In re Marriage of Jorgenson, 143 P.3d 1169 (Colo. App. 2006). The actions by husband were considered economic fault.

In conclusion, it is important to keep the concept of economic fault in mind, especially when making decisions concerning the assets of your marriage, if you anticipate a divorce in your future.  Actions taken that may be construed as depleting an economic resource of the marriage may be used against you and, therefore, may impact the amount of property you receive upon the distribution of assets.

Marital Fault or Economic Fault? What Colorado Courts May and May Not Consider

Colorado District Courts are not immune to the ongoing recession.  Court dockets have become so full that it often takes up to nine months to schedule permanent orders hearings in domestic cases.  Accordingly, parties are contemplating the resolution of the marital issues without court intervention at an increasing level.  To settle a case without court intervention requires several things, but most importantly, a separation agreement and a parenting plan, when children are involved.  

Separation agreements come in many forms and often include any legally binding written document signed by both parties that memorializes any agreements the parties have made with respect to the disputed issues.  Separation agreements, often referred to as stipulations, are generally filed with the Court and ultimately become the Court’s orders.  A good separation agreement should attempt to resolve all of the issues.  These issues include, but are not limited to:  allocation of debts and assets, resolution of future disputes, spousal maintenance, separate property, insurance and many more.  Depending on the complexity and amount of issues in any case, separation agreements can be brief or appropriately lengthy. 

The amount of conflict and the complexity of the issues often impact the ability of the parties to negotiate, or alternatively, the amount of time the parties will require to conduct a contested hearing in the district court.  Lengthy contested hearings are difficult to come by and the courts often prefer to entertain only those issues that are actually in dispute.  Therefore, there is often inadequate time to address all of the issues in domestic cases.

It is very difficult for parties to get on with their lives without resolving property distribution, payment of marital debt, spousal maintenance, etc.  Separation agreements can be temporary, permanent and be as comprehensive as necessary given the circumstances in each case.  Therefore, it is important to draft them with meticulous reflection and insight into the past, present and the future.  Experienced domestic attorneys have confronted a multitude of marital issues and have become experts in drafting separation agreements that help decrease the chances of future litigation.  When actual agreements are made, the parties often feel they have achieved their goals, which often facilitates the closure they desire. 

Separation Agreements

Parties often hire a domestic relations attorney when communication between the parties has, to put it politely, ceased to be productive. One or both parties might hire attorneys to help them articulate their positions in a less emotionally-charged manner.

One thing many people might not think of when they hire an attorney to be their mouthpiece is that the client and the attorney must have open and clear communication between each other. It is absolutely necessary for the client to feel like they can tell their attorney exactly what they want and why they want it, without feeling like they need to conceal certain elements of the case.

The first meeting between a client and an attorney is an opportunity for the client to decide, “Can I easily communicate with this person without feeling intimidated and without feeling the need to ‘sweeten’ my story?” An attorney cannot effectively represent a client unless the client is willing and available to assist them in the case. Clients shouldn’t feel like they need to use legal jargon or lie about their position. Chances are, although your story is very unique to you, your situation is not new to the legal world, and your attorney has experience on a case similar to your own. An attorney’s job is to counsel his or her client to find out his or her needs and wants, and translate those needs and wants into a legal position that the client can stand behind.

In some cases, an attorney or a client might decide that they are not a good match, and much like any type of relationship, the pair must go their separate ways. Both parties need to clearly express their desire to end the relationship. Clients are sometimes worried about telling their attorney that they don’t wish to have them as their counsel anymore. As a client, you should know that you have every right to terminate your attorney /client relationship. However, attorneys may have duties that extend past the termination, which might include tasks such as drafting and filing documentation requesting permission from the Court to stop working on their client’s case.

The bottom line is that you should hire an attorney to whom you feel comfortable communicating your questions and concerns. Feeling like you want to hide from your own attorney puts additional stress on your already stressful situation! Your attorney will appreciate your participation and your willingness to articulate questions or concerns, and to alleviate any ambiguities between the two of you.

With any luck, you will choose an attorney who you feel comfortable with, who understands your position, and who talks to you in a way that you can comprehend. There is no reason why attorney/client relationships have to be any different than other personal relationships.

If you have a domestic relations issue, the initial consultation is a perfect opportunity for you to state your facts and decide if you feel comfortable moving forward with that attorney in what is undoubtedly one of the more stressful moments in your life.

Effective Communication Between You and Your Attorney

A significant number of marriages end as a result of money problems or disputes. These money issues often involve significant debt. In dissolution of marriage cases, the parties’ debts and assets will be allocated to the parties by agreement or Order of the Court. When the debts far exceed the assets, bankruptcy is often the only resolution. It is important to know if and when to file for bankruptcy when you are also seeking a divorce. This discussion presents a summary of the impact of bankruptcy on a divorce proceeding and is not intended to provide a primer on bankruptcy.

Probably the most common type of bankruptcy is a Chapter 7 Liquidation. Generally speaking, most debts are discharged in a Chapter 7 bankruptcy. However, the bankruptcy court will not discharge certain debts like taxes, student loans, child support, spousal maintenance and some asset allocation obligations found in a divorce. The other main type of bankruptcy is a Chapter 13 Restructuring. They are harder to qualify for but they provide a method of restructuring your debt and entering a repayment plan. In domestic cases, all debt is generally allocated to one or the other party. Therefore, Chapter 7 is often the preferred method in divorce situations because it does not generally create future obligations. However, liquidation will not address debt that cannot be discharged, which must then be addressed in a divorce settlement.

It is also important to note that certain assets will be protected from liquidation. The court calls those assets exempt property. The exemption applies to certain assets such as: vehicles up to $5,000; equity in homes up to $60,000; some retirement accounts; child support and maintenance received, etc. The basic lesson from exemption is that domestic obligations like child support cannot be liquidated whether you pay or whether you receive such obligations. However, enforcement of such orders is generally not permitted during the pendency of a Chapter 13 proceeding.

The more common question is often when to file for divorce. Once parties are divorced, the bankruptcy court may not have access to marital property. Marital property is generally any asset or debt acquired during the marriage. After a divorce, marital property no longer exists. If one spouse files for bankruptcy after divorce, the court will not have access to the other spouse’s property that has become separate property. Therefore, the general rule is that parties should file for bankruptcy together before they are divorced. However, there are many exceptions to the general rule. It is important to consider a host of other factors as well. A professional attorney may help you navigate the complexities of bankruptcy, divorce and more importantly, how they interact.

Bankruptcy & Divorce

I just finished 2 days of collaborative law training and on returning to the office, was heckled by my associates for potentially losing my litigation mojo. It seems some of them buy into the view that collaborative law is somehow a weak approach to family law, or, as one indicated, really best for the women in divorce.

Before attending the collaborative law training, I might have just chuckled a little and walked off in the face of these obviously sexist and hasty comments. But I attended the training and made the investment of two attorneys for two days to give collaborative law a fair shake – and a fair shake down. After two days of asking hard questions and being as fully open to the concept as I could, I can now say “bunk” to these preconceived, sexist and ill-inform comments.

Collaborative law is a valid and useful tool in resolving some family law cases. All cases should be evaluated as candidates for this process the same as we might evaluate a case for other tools such as mediation. I’m convinced that some cases will be better handled in the collaborative process rather than in litigation – not all, certainly, but some.

To my associates who think women fair better, I can say there is nothing gender specific about collaborative law. The process is completely gender blind. Men should fair just as well as women. I found nothing in the process which leads me to believe one sex is advantaged by the election of the CL process. I believe young fathers are particularly disadvantaged in our family law court system, in general, and I do believe there is a strong bias for young mothers. But I see nothing about the Collaborative Law process that exacerbates that inequity. In fact, I find the educational nature of collaborative law to be a powerful tool in bringing the parties to a common solution.

We have more to learn about the process and I look forward to it. This tool for resolving family law cases is here to stay for a reason – for some cases, this litigation substitute will help families survive the divorce process.

Collaborative Law – To Be, or Not to Be …

In the majority of Colorado districts, the Court often orders a form of alternative dispute resolution before they will schedule a hearing on disputed issues. The most common form ordered is mediation. It can be a costly endeavor but if the parties’ are sincere about settling their disputed issues, it can be very productive. There are two primary concerns to addressed before scheduling mediation. First, who should be selected as a mediator? And second, what can I expect to accomplish through mediation?

In order to address these concerns, it may help to understand what mediation involves. Mediation generally includes deliberations that result in solutions that may or may not be accepted by the contending parties.  A mediator will often make recommendations regarding proposed solutions.  However, their recommendations are neither binding on the parties nor the Court.  Mediators will draft agreements regarding any resolved issues and once signed by both parties, become binding.

Often times a mediator will make recommendations based upon their experience and knowledge. For example, a mediator may have an opinion based upon their expectations regarding how a particular Court or even a particular judge may rule on a disputed issue. Accordingly, it is often very important to choose a mediator who has the requisite experience and familiarity with the type of issues in dispute, whether they involve domestic violence, substance abuse, financial or any other issues.

Often times parties believe that mediation will be a futile endeavor. However, while the parties may be pessimistic about the outcome of mediation, there are some benefits to participation. For example, everything discussed with a mediator or with opposing parties during mediation is strictly confidential. Accordingly, a mediator generally cannot be called as a witness in a subsequent hearing. Therefore, the parties are able to speak openly and honestly about their concerns. In addition, the parties often become much more familiar with what the opposing party is looking for. Therefore, even though a resolution may not be reached, mediation often helps the parties determine the range of options to resolve disputed issues. Ultimately the parties may settle somewhere in the middle of the range or alternatively become more prepared to focus on the range in a subsequent contested hearing.

Family law attorneys work with a variety of mediators all over the state. Mediators are often practicing attorneys, retired judges, medical doctors, mental health or other types of professionals. Depending on the complexity of the issues, it is important to pick a professional with specific expertise regarding the disputed issues. While not true in every situation, often more expensive mediators help the parties resolve more issues. As Court dockets become increasingly overwhelmed, mediation is a very likely endeavor in all divorces to eliminate some of the burden on the Court.

Mediation & Divorce

Remember the good old days when we all sent our letters by what is commonly known today as “snail mail?”  It was great.  You could get into a heated argument with someone, write them the nastiest letter in the world, sleep on it, wake up in the morning, and then decide, “Maybe its best if I don’t mail this.”

Today, quite a few of those steps are removed.  In fact, all of them are.  All that separates one from delivering that nasty-gram to the other party is that now proverbial “send” button.  After parents separate from eachother,   e-mail often becomes a primary mode of communication.  Unfortunately, people don’t stop to consider how their e-mails will look if presented to a Child and Family Investigator or a Judge.  I tell clients, before they hit that “send” button, they should picture their e-mail with a big “Exhibit” sticker on it and consider whether they will want to explain it later.  If one’s legal matter is contested, there is a large chance, if not a 100 percent chance, this e-mail will come back to bite the sender.  Even if the matter is resolved by settlement, those e-mails can still be used for posturing or to worsen one’s position in negotiations.

Although this may seem like a common sense thing to avoid, it happens all the time.  I believe this is true for two main reasons.  Reason number one: most people believe that, if they are arguing about something with their spouse,  significant other, ex, etc., then they are substantively in the right, and it does not matter who sees it.  In the heat of the moment, people do not stop to consider the emotions that may be clouding their judgment, and they do not stop to consider that, even if they are in the right, the way in which they deal with the conflict may be frowned upon as well.  Instead of sleeping on it and walking to the mail box, they hit the “send” button.

Reason number two: many of these e-mails are sent before litigation is anticipated, or during a stage when a person is mistakenly under the belief that he or she will be able to eventually “work things out” with the other party.  People often feel betrayed when the other party actually has the audacity to show their private communication to the court.  And so it goes that, whilst one expects the gloves won’t come off and maintains a false sense of security in dealing with a loved one, a stack of damaging evidence is created.  People end up looking at what they wrote and thinking, “Well, jee-wiz, I was just venting.  I didn’t really mean that.”  I cannot count the number of times new clients have come to me providing a stack of juicy e-mails to deal with.  The moral of this story is, if you don’t want to “CC” the Judge, don’t hit the “send” button.

E-mails as Exhibits, Think Before Hitting the “Send” Button

In the event that you become responsible to pay child support and/or spousal maintenance, it is essential that you keep a detailed record of each payment made. If you are Ordered to pay child support, it is likely to be for a period of several years. The duration for which you may be Ordered to pay spousal maintenance varies depending on the parties’ situation.

Often times, the Court will Order your payments to be made to the Family Support Registry (FSR). The FSR then distributes the payment to the obligor. The FSR keeps track of the date your payment was made and the amount of the payment. However, it is not always clear as to whether your payment was for child support or spousal maintenance. Missing just a few payments can cause you severe frustration several years down the line.

For instance, assume you and your spouse or significant other have a child together. Further, assume that soon after your child is born, your relationship becomes tumultuous, and the two of you decide to separate. Depending on several factors used to calculate child support, it likely that one party will be required to pay the other a child support payment each month. Depending on the amount to be paid, you may even pay twice per month. As child support payments are likely to be required until that child becomes emancipated, you may be paying once or twice monthly for the next nineteen years. To put this into perspective, if you are required to pay child support for 19 years, one payment each month, that is 228 payments that will be made and 456 payments should you be Ordered to pay twice per month!

The sheer number of payments is one reason why it is imperative that both the Obligor and Obligee keep a record of each payment made, including, but not limited to: the date the payment was made; a copy of the form of payment, such as a check, wire transfer, or money order; the address the payment was sent to if mailed; the date the payment was cashed, if traceable; and whether that specific payment was for child support or spousal maintenance. Keeping track of what the payment was for is essential, due to the high interest rate imposed for missed child support and spousal maintenance payments. While both are high, child support is much higher, currently 12%, and is compounded monthly. C.R.S. § 14-14-106 (2008). Interest applied to unpaid spousal maintenance is 8%, compounded annually. C.R.S. § 5-12-101 (2008).

Not only is it important to meet your obligations if you are the Obligor, but just imagine the conundrum you may face should the Obligee seek to recover any alleged missed payments if you do not have sufficient records to prove the payments were made. Under Colorado law, if any Court Ordered installment of child support or maintenance is due and unpaid, it automatically becomes a final money judgment. C.R.S. § 14-10-122(1)(c) 2008. Consequently, the applicable statute of limitations is twenty years from the entry of such a judgment. C.R.S. § 13-52-102(2)(a) (2008). Should you fail to make payments, you may be faced with an action whereby you need to produce payment records from the last two decades.

Due to the various durations of time which the child support and/or spousal payments may be required, if you have not maintained a record of your payments, it may be difficult to defend yourself. Never rely on your bank or financial institution to safeguard these records for you, as the method of payment used ten years ago may now be obsolete due to constantly changing technology.
Regardless of whether you are responsible to pay child support, maintenance, or both, missing just a few payments may cost you more than you bargained for, including the time required to trace your payment history. The needless expense associated with re-creating your payment history is entirely avoidable, so be sure you maintain an accurate, detailed record of each payment made.

Keep an Indisputable Record of Maintenance and Child Support Payments

A significant number of marriages end as a result of money problems or disputes.  These money issues often involve significant debt.  In dissolution of marriage cases, the parties’ debts and assets will be allocated to the parties by agreement or Order of the Court.  When the debts far exceed the assets, bankruptcy is often the only resolution.  It is important to know if and when to file for bankruptcy when you are also seeking a divorce.  This discussion presents a summary of the impact of bankruptcy on a divorce proceeding and is not intended to provide a primer on bankruptcy.

 

 

 

Probably the most common type of bankruptcy is a Chapter 7 Liquidation.  Generally speaking, most debts are discharged in a Chapter 7 bankruptcy.  However, the bankruptcy court will not discharge certain debts like taxes, student loans, child support, spousal maintenance and some asset allocation obligations found in a divorce.  The other main type of bankruptcy is a Chapter 13 Restructuring.  They are harder to qualify for but they provide a method of restructuring your debt and entering a repayment plan.  In domestic cases, all debt is generally allocated to one or the other party.  Therefore, Chapter 7 is often the preferred method in divorce situations because it does not generally create future obligations.  However, liquidation will not address debt that cannot be discharged, which must then be addressed in a divorce settlement. 

It is also important to note that certain assets will be protected from liquidation.  The court calls those assets exempt property.  The exemption applies to certain assets such as:  vehicles up to $5,000; equity in homes up to $60,000; some retirement accounts; child support and maintenance received, etc.  The basic lesson from exemption is that domestic obligations like child support cannot be liquidated whether you pay or whether you receive such obligations.  However, enforcement of such orders is generally not permitted during the pendency of a Chapter 13 proceeding. 

The more common question is often when to file for divorce.  Once parties are divorced, the bankruptcy court may not have access to marital property.  Marital property is generally any asset or debt acquired during the marriage.  After a divorce, marital property no longer exists.  If one spouse files for bankruptcy after divorce, the court will not have access to the other spouse’s property that has become separate property.  Therefore, the general rule is that parties should file for bankruptcy together before they are divorced.  However, there are many exceptions to the general rule.   It is important to consider a host of other factors as well.  A professional attorney may help you navigate the complexities of bankruptcy, divorce and more importantly, how they interact. 

Divorce & Bankruptcy

Unfortunately, what is now being termed as “parental alienation” is something many children experience during and after the period where their parents part ways.  Although it can exist in smaller or larger degrees, it is actually thought to be fairly common.  For an informative article on the issue, see http://www.divorcecentral.com/states/news/

Parental Alienation

Everyone knows that going through a divorce is a traumatic and emotional experience.    However, if you look closer one is able to find the silver lining and find that their situation is one that still should be viewed in perspective and “thanks” should be given.

1. Children – Losing time with your children is, in my opinion, the most devastating part of the dissolution process.    While, I could not imagine the stress and feeling of losing time with ones children.   I can tell you that if you are in the situation of going through a divorce, than you know the amount of stress that you and your children have been going through during the marriage.    The silver lining in all of this, is that the amount of time it takes to go through a divorce is relatively small and once you are in a better place in your own life your children will benefit.    While the quantity of time with your children will go down, the quality will go up dramatically.

2.  Finances – To the higher earner in the marriage this is a touchy situation.   It is difficult to divide ones income and retirement with ones soon to be ex.   However, be thankful that you are in the situation to be able to divide and provide for your ex and children.    Also, depending on your age and situation, it will either be possible to regain these financial advantages that you once had or if you are of retirement age be thankful that you, in most cases, have successfully raised your children and provided a great youth and growing experience for them.

3.  Attorney Fees – No one likes paying their attorney fees or even worse the attorney fees of their ex.   An attorney provides you with much needed legal and emotional stability.   It is our job to provide you with all of your options and provide you with the “what ifs”.   However, it is still your life and your decision.   You should be open and honest with your attorney about your wants and desires so we are able to provide you with the best possible legal service and negotiate or litigate a favorable outcome on the items of which are most important to you.

Most important, give thanks that you are on the road to a happier and healthier life.

Happy Holidays!

Giving Thanks – During a Divorce

Often times, courts start with the unspoken presumption that shared parenting time is in the best interests of the children. If both parents are able to exercise 3-4 days per week, want to spend that much time with their kids, and have an established relationship with them, then we often find that the burden for obtaining any other schedule shifts to the party seeking more time. So while there is no statute that requires a shared – or “50/50″ – starting point, as a practical matter, we find most courts start with that assumption.

But that assumption doesn’t really exist when it comes to infants and toddlers for many courts. Contrary to our observations in most other cases, when the case involves infants and toddlers, many professionals involved in family law believe the designation of one, primary caregiver is in the best interests of the child. The argument is that the identification of one primary caregiver meets the developmental needs of kids at this early stage and that trying to split the child’s time between two parents may create significant negative issues for these kids later in life.

There is some scientific evidence which supports this theory. The evidence is not taken from actual children raised in one-caregiver situations verses two-caregivers, but is instead based on the developmental stages of children, their emotional attachments during those stages, and studies demonstrating how the brain develops in young children.

If we believe these studies – and many who practice in family law in Colorado do – then one parent should be designated as the primary caregiver and awarded almost all the parenting time for these young kids. These same alleged experts do concede, however, that if both parents are able to work together for the benefit of their children, a two-caregiver arrangement may “not be harmful”.

Unfortunately, this may be a case where valid science is being misapplied, with devastating consequences. If lawyers believe a judge is likely to follow this philosophy and award just one party all the parenting time, a situation where the parents are relatively civil and able to work together most of the time has just turned into an “all-or-nothing” nuclear war for designation of primary caregiver.

Further, at what point does the loser parent get reintroduced to his or her child? Haven’t they now just lost any hope of truly being an equal parent? Won’t they now always be the “Guest” parent?

Finally, what happens when the infant or toddler has an older sibling, who is at a different developmental stage? We all recognize that we should keep the children together whenever possible. Does this mean the developmental needs of the older sibling to have a relationship with the “guest” parent must be sacrificed?

There is no easy answer to these complicated cases involving infants and toddlers. And since family law professionals vary in their beliefs on this issue, it becomes very difficult to settle these cases.

Parenting Agreements for Infants and Toddlers

I came by this study the other day, and it really caught my eye.  In particular, the categories defined for a  “high-risk” dynamic between couples was telling.  I would estimate that nearly ninety percent  (90%) of clients who come to me seeking a divorce communicate that their marriage suffers from at least one of these high-risk dynamics.  If a couple realizes that one of these patterns is starting to form in their marriage, addressing it early on may be able to prevent a future divorce.  Bonnie Maslin, psychotherapist and author of “The Angry Marriage,” appeared on “The Early Show” to discuss this study.   Here is a link: http://www.cbsnews.com/stories/2002/08/06/earlyshow/health/health_news/main517731.shtml

New study predicts likelyhood of divorce

I hear quite a few stories in post-decree divorce and parental allocation cases concerning child support. One big problem is the fact that many people believe it is sufficient to simply agree betweeen themselves to modify aspects of their prior court-ordered parenting plan or child support order. For minor parenting time changes, although it is better to submit changes you desire to remain effective to the Court, failing to do so may not prove problematic if the changes are minor. However, child support is different.
It is not enough to agree with the other party, even if you reduce the agreement to writing and sign it, to a modification of child support. Moreover, if you are the one paying the support and the modification is a reduction in support, it is that much more important that any agreement be submitted to the Court for the Court’s approval. If the Court does not issue an order modifying the support amount as agreed, then it is possible for the spouse receiving the support to come back later and request the additional amounts due, because the Order was never modified. As for gaining Court approval, any modification following a divorce or decree will need to be shown to be in the child’s best interests, and consistent with the child support guidelines. If there is a deviation from what the child support guidelines require, then you need to explain why the deviation is justified. An attorney is useful to work out these agreements and supply additional information to the Court to enhance the likelihood the Court will approve the stipulated modification of child support.

Child Support Modifications

Making the decision to move out of the marital home is a very difficult decision to make in the beginning of the dissolution process. It is a decision that should be discussed with an attorney because it could affect several issues of your case, including maintenance, child support, parenting time, and most importantly who stays in the marital home during the process and after the dissolution.

If you have children, moving out of the marital home could adversely affect the amount of parenting time you receive with your children.    In most cases, the children will stay in the marital home throughout the process of the dissolution.   If you move out, than you will be the one that has to make sure their new home has adequate accommodations and you are able to transport them to and from their daily activities, if they are to stay the night at your new home.    While dividing your family into two homes is inevitable, it is not necessarily in your best interest to move out until a parenting plan is in place.

When and if you decide to move out, make sure you find a place that is adequate for your children and for yourself.   If you decide to find a cheap place, just because it is cheap, then the Court may determine that is all you need for rent in the long run and this could adversly affect the amount of money you keep of your own paycheck for your living expenses and could provide an avenue for your ex to get more money for maintenance.    Maintenance is calculated by your spouses need and your ability to pay, if you lower your bills by renting a cheap place it could be costly in the long run.

Consult with an attorney before you move out, because once you move out it is extremely difficult to get back in, in most cases.   Your spouse will have a difficult time getting an Order from a Court to have you removed from the marital home, but if you move out your spouse may change the locks and it may be an uphill battle to move back into the marital home.

The decision to move out of the marital home divides your one family home into a two family home, which is difficult both from an emotional standpoint if there are children and is always difficult regarding the financial situation. In most cases, prior to the divorce families are just getting by, and now you are going to have to financially pay for two separate households. It is very difficult, but in most cases, one party has to move out to make the process go smoother, and eventually the inevitable will come.    But what is most important, is that you know how your decision to move out will impact not only the near future but also the process of the divorce and long term commitments to your spouse and children.

It is a difficult decision and one that should be made with the advice of an attorney.

When to Move out of the Marital Home

For years now, our firm has followed the health impacts of divorce on men and women and noted the disparity between the sexes.  See www.DivorceHealth.org.  Yet another new study study confirms our observation that the health of men and women is impacted in different ways.

In an article published in the New York Times today, (http://well.blogs.nytimes.com/2009/11/12/men-more-likely-to-leave-spouse-with-cancer/?hp) we see that when men were diagnosed with cancer and became ill, only 3 percent experienced the end of a marriage. But among women patients, about 21 percent ended up separated or divorced.  The study was conducted by Dr. Michael J. Glantz of the University of Utah Huntsman Cancer Institute and colleagues from three other institutions who began to collect data on 515 patients diagnosed with brain tumors or multiple sclerosis from 2001 through 2006.

Women in Dr. Glantz’ study who were diagnosed with a serious illness were six times more likely to become separated or divorced than men with similar health problems.  One doctor in the study speculated that differences in male and female roles in the family might explain the trend. “There clearly is an emotional attachment women have to spouse, family and home that in times of stress causes women to hunker down and deal with it, while men may want to flee.”

Whatever the real reason for this disparity may be, we continue to argue that treating  men and women the same though the divorce process fails to address the clear fact that these clients have different needs, challenges and resources.  Recognizing these differences will serve all clients better.

Divorce and Cancer

Some states are considered “fault” states.  The general idea here is that if one party behaves poorly, the court may consider this marital misconduct when they award marital assets and debt.  In the State of Colorado, marital misconduct is not considered by the Court in a determination of what is a fair and equitable distribution of marital property.  Many people are upset by this, especially when the need for the divorce is that the other party has been cheating, drinking too much, etc.

In a recent divorce case in New York, a prominent surgeon demanded the kidney back which he had previously donated to his wife, or he wanted 1.5 million dollars in return.  This case received a lot of press, mostly due to the absurdity of the idea that one should be cut open to return a kidney as a result of divorce.

He did not really want his kidney back.  The thrust of his argument was marital misconduct.  He claimed that she had been cheating on him all along, used him for his kidney, then filed for divorce and would not let him see their children after she had it.  The fact that she now had the kidney added to her life span and earning ability, while the fact that he was short a kidney would potentially limit his earning ability, shorten his life span, and generally lower his quality of life.  His real argument was that, because she has behaved poorly, he should be awarded a larger portion of the marital property,  she should receive less, and the value of his kidney ought to be counted on her side of the “assets.”

For a link to this story:  http://www.newsday.com/long-island/man-wants-wife-s-kidney-back-or-1-5m-1.885629

Be glad Colorado is a no-fault state, in New York a spouse can go after your kidney

People generally seek legal separation for a couple of primary reasons.  The first reason is for health insurance purposes.  Often an individual with pre-existing conditions cannot get health insurance if dropped from the spouse’s policy after a divorce.  However, legal separation may permit them to remain on their spouse’s policy.  Another reason is for religious purposes.  For example, divorce is not favored in the Catholic church, however, legal separation is generally accepted.  Whatever the reason, the parties cannot remarry without converting the legal separation into divorce, which  can be done after six months from the Decree of Legal Separation in Colorado.

A party can generally file their Petition for Dissolution in any District Court in the State of Colorado.  However, it is generally preferred to file in the district court in which one or both of the parties reside.  When a Petition is filed, a new case is opened and assigned to a judge according to that particular districts internal policy (i.e. even/odd case numbers, availability, etc.).  Although the general procedure for adjudicating domestic cases is established by state law, each court, and even each judge, has their own style and often interpretation of the rules.  Therefore, it may be beneficial to your case to carefully select the court in which you file.  However, I wouldn’t embark on drastic measures without sound legal advice. 

 Read more about Shaq’s story at http://www.telegraph.co.uk/news/newstopics/celebritynews/6541135/Shaquille-ONeals-wife-files-for-divorce.html.

Where to file for divorce or legal separation.

All too frequently, I see parents in a situation where the kids have been moved without notice.  One parent unilaterally decides to up and move in the middle of the night, without consent, planning or consultation with the other parent.

Unfortunately for the kids, the law treats this situation differently, not based on the needs of the kids, but the nature of the relationship between the parents and the status of any lawsuit between them.  In some instances, a parent may be able to rush into court and get an Order for their return, the sheriffs can be called out to help, or an Amber Alert issued.  In other circumstances, it’s just tough luck for the kids.  I call this the “Family Law Doughnut Hole”.

The disparity in protections is simply unfair for the kids.  They don’t know – or care – what the status of any lawsuit maybe.  From their perspective, it doesn’t matter whether this is done in the context of a divorce or an Allocation for Parental Rights.  They don’t have any influence on the automatic provisions of an injunction.

Yet we all know that it’s a bad decision to make these midnight moves because of the significant impact they may have on the well-being of the children.  There are clearly circumstances where safety is paramount and the kids must be removed from a dangerous situation in the home, but it is all too common that these midnight moves are triggered by emotions between the parties, with no consideration for the kids. These moves rip the kids from their schools, take them away from their friends, and complete disrupt the child’s community.

If and when theses events happen, it is critical to get the advice of an experienced family law attorney.  The law in this area changes frequently and each jurisdiction handles emergency situations differently.  Time is of the essence – don’t wait to act.

Midnight Moves – Family Law Doughnut Hole

When a couple with children initiates the divorce process, a common issue is parenting time. If one parent moves out of the marital home, there may not be an opportunity to secure parenting time for a couple months, or the soonest time a Temporary Orders hearing is available on the Court’s docket. Many parents are able to work with each other to ensure that their children are able to spend time with both parents. However, it’s not all that uncommon for one parent to restrict the others parenting time during the initial stages of a dissolution proceeding, when there are no Court Orders available to enforce parenting time.

Sometimes the primary parent has concerns for the health and well being of the children while they are in the care of the other parent. In some circumstances, these concerns may be founded. In other circumstances, it may merely be a ploy to alienate the other parent, take control, or attempt to gain an advantage in litigation.

The Court will generally not see one parent’s lack of parenting time as an emergency, per se. Just because a parent has moved out and is not getting parenting time, this does not typically equate to the Court conducting an emergency hearing that week. It is a process that takes time.

When I represent a parent who is not able to exercise parenting time with a child in these beginning stages, I have two main goals. The first is to get a hearing as soon as possible. If the other party’s allegations are serious enough, that may result in supervised parenting time for the other parent until issues can be sorted out. However, that is better than no time with a child, who needs to know that the other parent is still going to be a part of his or her life. The other goal is to consistently request parenting time from the other party during this period in an effort to make arrangements for at least some parenting time, until a hearing can be held and the Court enters an enforceable parenting time schedule.

If this conflict arises, it is invariably the most difficult aspect of a dissolution proceeding for the isolated parent. It requires patience, and hope for a light at the end of the tunnel.

Parenting Time at Start of Divorce

Much like a marriage, a divorce involves hours and hours of preparation, stress management, organization and emotional fortuity. Just like you trust a wedding planner to make it all happen, you probably want to retain a divorce attorney to guide you. They help you navigate the complex laws that apply to domestic relations, which vary by county and often by individual judges. Although a licensed professional family law attorney can assist with most of the divorce process, it requires a substantial contribution by individual clients. Here are three of the more burdensome steps in the process and the estimated time involved.

 

 

 

1.      The mandatory disclosures process requires the parties to exchange financial information and documents that often require extensive research, locating obscure documents and digging through storage. The applicable time period to complete this process is forty (40) days that begins on or about the date the summons for dissolution is filed or served.

 

2.      The discovery process, if applicable to a particular case, generally involves two significant endeavors. The first includes Requests for Production of Documents, which requires the disclosure of all kinds of documents up to and sometimes more than three years old (i.e. bank statements, check stubs, stock certificates and much more). The process is not that dissimilar from the mandatory disclosure process but more in depth. One of other primary discovery tool includes Interrogatories, which are questions that the parties may propound to each other to elicit all kinds of information that may be significant to the case. The parties generally have thirty (30) days to complete this process.

 

3.      Often times, divorce cases require the involvement of expert witnesses. One common expert is the Child and Family Investigator. Expert witnesses perform various forms of evaluation and analysis and ultimately provide a report to the parties expressing their findings and often their opinions. The use of experts requires approximately sixty (60) days in a divorce proceeding.

 

Although all of these steps can run concurrently, each has the ability of extending the period of time it takes to get a divorce. No two cases are the same and it is difficult to predict how much time and effort a divorce will require. However, a qualified attorney can improve the efficiency and strategy involved and often times the outcome. The question then becomes, “Why Not Hire A Divorce Attorney?” That’s a question generally answered by a free consultation.

 

Why Hire A Divorce Attorney

Denver divorce lawyers are instrumental in aggressively fighting for a divorced parent’s interests, particularly the ones that touch on child custody and other parental rights. After all, having a divorce is not all about the parents or the partners. Rather, a big factor in court decisions has always been the children’s welfare. Ideally, divorced parents should still share in their responsibilities of rearing their kids to become good individuals. And one aspect of caring for kids is effective communication. So, how can you still keep in touch with your children after your divorce? 

 

Today, Denver divorce lawyers believe that there are no more excuses or barriers that prevent any divorced parent from communicating with the kids. Thanks to the rapid advance in technology, particularly the Internet, there is a variety of ways at your disposal which can all connect you with your children and spend some quality parenting time with them. The surprising thing is that most of these tools are available right under your nose. First off the bat is the cell phone. Almost everyone has a mobile phone now, including kids. So, all you need is to dial your kids’ phone numbers and you can instantly touch base with them from any place on the planet. The latest mobile phones have video-conferencing capabilities which allow you to talk and see your kids at the same time. 

 

Denver divorce lawyers also recommend going online to stay in touch with your children. With a headset, a webcam, and a host of Internet-based solutions, both you and your kids can communicate as if you were in the same room. The best part is these online applications usually come free of charge. And believe it or not, kids of today are familiar and comfortable with such applications so you do not have to worry about teaching them how to use such tools. With these applications, all you need to do is open an account with any service provider. 

 

If the children do not have computers of their own, Denver divorce lawyers suggest that parents take advantage of online software that allows calls from the computer to any landline or mobile phone. Such tools may charge a few cents per minute, but if you are calling long distance, online voice calls are definitely cheaper than ordinary phone-to-phone calls. If you are prohibited to directly communicate with your children, you can settle for video or photo sharing on the Web. With a regular digital camera, you or your kids can snap up pictures and then email or upload them on free photo sharing applications online. Truly, with today’s technology, getting in touch with your kids after your divorce can only be limited by your imagination.

How to Use Technology to Stay in Touch with Kids after Divorce

Colorado divorce attorneys can help gay and lesbian parents in issues like child custody and visitation rights. Take the case of celebrity chef Cat Cora. At present, she is married to her wife Jennifer Cora. They are living with their sons Zoran and Caje. And both parents are pregnant with two more sons expected to be born in 2009. While their family is intact and living happily right now, there can be problems regarding parental rights for partners if the couple’s relationship bogs down. If ordinary divorce proceedings can already be complicated, imagine how draining would things be in ironing out conflicting interests between same-sex partners who are getting a divorce.

 

While Chef Cat Cora and her wife Jennifer have nothing to worry about in their relationship, there are several cases now concerning same-sex partners who have separated. Many Colorado divorce attorneys have been aggressively engaged in messy battles for parental rights involving clients who are gay, lesbian, and bisexual partners. In Colorado, there has been the landmark case of Dr Cheryl Clark against her longtime partner Elsey Mcleod. After their marriage fell apart, Clark asked to restrict and later on cancel the visitation rights of Mcleod. The latter filed a motion for reconsideration asking for joint custody of their adopted daughter. The court later ruled that the two mothers shall equally share responsibilities as parents. 

 

Colorado divorce attorneys know that Colorado courts do not look at the sexual orientation of the parents when determining parental rights for partners. The most important issue has always been the children’s welfare. Depending on how aggressive a divorce attorney is in asserting her client’s rights, Colorado courts can grant a divorced same-sex partner the prerogative to petition for parental rights, even if such partner is not biologically or legally related to the child or children in question. The point is that it pays to get the services of an expert divorce attorney, especially if you are fighting for parental rights in a same-sex marriage. 

 

In the end, you should get help from reputable Colorado divorce attorneys, whether you are a celebrity or not, because the fact of the matter is that divorce has never been a walk in the park. Aside from spewing out crushing emotional sacrifices and financial losses, divorce can result in a predicament involving parental rights for partners. Divorce attorneys in Colorado can effectively assist you in getting past the twists and turns of divorce laws in the state and, eventually, in creating solutions that can meet your best interests and that of your kids.

Celebrity Chef Cat Cora: Parental Rights for Partner?

You’ll notice sometimes, after a super star’s divorce, they’ll immediately go back out on tour. You might think they are just returning to their roots or maybe wanting to recapture their youth by jamming away in front of 20,000 adoring fans. Maybe. And maybe it’s just that they owe their recently divorced spouse a boat-load of maintenance, or alimony. It wouldn’t be too uncommon to find a provision in their separation agreement which allows them to either make regular payments or to make a lump sum payment. Some obligors may even purchase an annuity to make the payments for them. Either way, often the real reason your favorite golden oldie returns to perform one last time, is better phrased a “Maintenance Tour”.