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

Spousal Maintenance: Statutory or Contractual?

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?

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

Negotiating and agreeing to a parenting plan can be an arduous task for everyone involved.  Once all of the parties involved have agreed on a schedule and plan that works, and that plan has been accepted by the court, it can be unpleasant to rock the boat if one party wants to relocate.  However, at some point, one or both parents may wish to relocate with the children because of a new job, a new spouse or simply a new beginning.

The first step should be to examine the location to where one parent wants to relocate.  It is important to have hard and specific facts about the job market, the housing market, the schools, and the church or community programs which would benefit the parties in the event such a move took place.  The court will likely only grant a relocation for the children if the move is in the child’s best interests, and if there is a reasonable, feasible way for the non-relocating parent to exercise his or her time with the children.  It is generally not a good idea to approach the court with vague and uncertain plans for a move.  If you are the parent thinking about relocating, determine the best place for you and your kids to go, and start gathering some facts about why a relocation will create a better life for your family.

Generally, taking the kids and moving to a new location without permission from the other parent is never a good idea. Courts generally frown on parents who remove children from the State of Colorado without first consulting the other parent, and if the parties have not agreed to a modified parenting plan, the non-relocating parent may demand that the children be returned to the state.  A Court may still determine that a future relocation is in the best interests of the children, but it is a good idea to either work out a new parenting plan with the other parent, or submit a motion for modification of the parenting plan and a motion to relocate to the Court before packing up and taking off.

If you or your other child’s parent is contemplating a relocation, it’s a good idea to contact a family law attorney familiar with the applicable statutes and case law to assist you in the process.

Life is About Making the Right Decisions and Moving On: What to do when one parent wants to relocate after a court-ordered parenting plan

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

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.

With the economy the way it is, and more people out of work now than at any time in recent memory, imputing wages is becoming a bigger part of all support cases, including cases involving maintenance claims.

Maintenance is support paid from one spouse to another. It used to be called alimony. While there is a formula which may apply in some divorce cases, the formula only applies to temporary awards of maintenance – awards that expire when the divorce becomes final. There is no formula in Colorado for maintenance beyond entry of the final divorce decree.

One of the biggest factors courts most often consider is the income of the parties. So what do you do when one of the parties is out of work? Prior to the current recession, courts would often “impute” income to the unemployed party based on what they earned before – sometimes more and sometimes less.

Now, we are seeing courts cut some slack for the unemployed parties when it comes to imputing income, in recognition that it really is hard to find a job out there. Occasionally, judges will decided that in this particular case, no income should be imputed at all.

Since imputed income can have a significant impact on support orders, having a full discussion with the court about the present likelihood of a party to earn income is critical.

Imputing Wages in Maintenance Cases

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”.