Denver Divorce Talk

Brandi Petterson - Colorado Divorce Lawyer

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.

David Donnelly - Denver Family Law Attorney

After several years of experience with divorces, and talking with so many people who have gone through the divorce process, I have seen the light.  There are countless reasons that people get divorces, but the most commonly occurring one is financial troubles.  When I say financial troubles, I do not necessarily mean that there is just not enough money to make ends meet, but instead, I see much of the time, situations where husband and wife just cannot see eye-to-eye and agree how to address financial issues.  It could be as simple as a one person’s fetish for shoes or golf, or it could be how much you spent on your new smart-phone, or it could be more mundane issues like whether you pay your bills on time.

When I was younger, I always thought that Pre-Nuptial Agreements, also known as Ante-Nuptial Agreements, were unfair, biased and manipulative agreements entered into in bad faith by one party with much to protect, and by the other party under duress.  I don’t think so anymore.

What I have learned over the years is that it is really beneficial to the success of a marriage, to have an understanding of what each party’s role will be in the marriage.  How will each contribute?  Who will pay what bills?  Because so many marriages end in divorce, statistically more than one-half, the chances of marriage succeeding, are increased by entering into a Pre-Nuptial Agreement which can provide this type of guidance to the parties. 

This type of agreement can assist both parties in understanding how money earned during the marriage is going to be spent and by defining it accordingly.  By providing the parties an already agreed upon road-map on how finances will be spent during the marriage, Pre-Nuptial Agreements lessen the stress, especially the stress which may ultimately lead to a dissolution or legal separation.  

John Henrick - Denver Family Law Attorney

There are several options with regard to collecting past due child support.

The first decision is whether you want to retain private counsel to assist you in collecting past due child support or start an action with Child Support Enforcement, which is a service provided by the State of Colorado.

The first option to attempt collecting past due Child Support is a Wage Garnishment. Many child support orders have a clause that allows one to garnish wages of the paying party once payments become overdue or missed. Either a private attorney or child support enforcement can prepare and serve the garnishment paperwork on the parties employer. A party can garnish the current child support payment and some portion of the overdue support.

The second option is attaching to tax refunds. If the nonpaying party is at least three months behind you can take the nonpaying parties income tax refund. This can only be done by Child Support Enforcement.

The third option is to Lien Property. You can get a judgment from the Court and attach that judgment to the nonpaying parties real estate. Putting a lien on property is easy to do, however there is no guarantee that the property will be sold anytime soon and therefore repayment may not occur for quite sometime.

The final option, that will be addressed in this blog, is a Contempt Motion. Hiring private counsel is the quickest and most efficient way in submitting a Contempt Motion to the Court. When meeting with private counsel please be prepared to provide us with the following information. A copy of the child support order. The nonpaying parties name, address and social security number. The current employer of the nonpaying party, if you know it. The amount and last payment of child support you received. How much the nonpaying party owes you and a description of any efforts you have made to collect the past due amount.

Jason A. Márquez, Colorado Family Law Attorney

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.

M. David Johnson - Denver Divorce Lawyer

So your divorce is final.  Now what?  Do you celebrate? Go on a vacation? Jump into dating? Hit the gym 7 days a week?

How about registering at Saks or Neiman Marcus for your post-decree reception gifts?

Following a divorce you  need emotional support and solid cooping mechanisms in place to start life over again - but you may also need a new toaster, iron, artwork, or a living room couch.  The economic realities are that new divorcees are likely to start with less than half of all the personal property, income and assets they had before the marriage deteriorated and will need to quickly re-acquire these items in order to sustain some degree of functionality or quality of life.

One novel way of reacquiring the personal property necessities is to have a divorce party, register yourself at a few local stores for the items you’ve lost in the divorce and send out invitations to all the family and friends who’ve been looking for a way to help support you.  Whether or not they’re able to attend your divorce party, these folks can help start you off on your new life.  Targeted generosity like this let you start over with the gifts you need and gives your support group a means to provide direct and useful help.  Be sure to hit up your lawyer for gifts too.

And while you’re asking for toasters, shower mats and picture frames, why not also ask for a year long gym membership, a few personal training sessions, or a month long membership to a local yoga studio?  Starting life over also means striking a new, and healthy, balance.  Start planning for the personal growth now.

The end of the divorce process is a conflicted time for most people.  It’s sad, scary, and final.  At the same time, many new divorcees also feel excited, reborn, and energized about a different kind of future.  This internal conflict is completely natural and originates from a fear of the unknown, something we all suffer from to one degree or another.  Recognizing that fear, embracing it, and choosing positive cooping mechanisms both during and after your divorce can help you move forward in a positive and sustainable way.

Brandi Petterson - Colorado Divorce Lawyer

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.

Shelley Sanderman - Colorado Family Law Attorney

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.

Jason Freeman - Denver Family Law Attorney

One of the most common misconceptions about child support and parenting time is that, if either is denied to a parent, this gives the other parent leeway to deny the other.  For example, Mom does not pay Dad child support, so Dad withholds parenting time.  The inverse of this, Dad denies parenting time, so Mom does not pay child support, is an equally unreasonable assumption in the eyes of the law.

One of the saddest telephone calls I frequently receive are from someone saying, “I wasn’t able to afford child support after I lost my job, so I haven’t been allowed to see my child for a couple years, and now my ex is going after me for back support.”  This is sad in on many different levels.  First, this child has been deprived of a parent for way too long.  Second, this deprivation is founded on bad information.  Third, two years later, after the psychological damage a child experiences from  having a parent removed from his life, the child support is still owed.  Fourth, it may have been possible to modify the child support obligation, and fifth, courts tend to not be so sympathetic to parents who are viewed as walking out of a child’s life and disregarding child support.  A reintegration period for that parent with the child may be necessary for the emotional well-being  of the child, and, in addition to owing back support, interest may be added on to the debt.

With the above in mind, it also makes sense that, if Dad is refusing child’s parenting time with Mom, then refusing to pay child support is not a good way for Mom to retaliate.  As the support obligation is not alleviated by Dad’s refusal to comply with orders for parenting time, that sort of retaliation will only end with Mom continuing to not see child and owing back support plus interest.

Sometimes, there is a threatening aspect to the situation.  For example, Mom tells Dad that if he tries to enforce parenting time, then she will sue him for back child support.  As a general rule of thumb, it’s not good to encourage the threats of the other parent by giving in to them.  This usually just results in more threats and abusive behavior.   Here, there is no exception.  If Dad gives in to this threat, the most likely result will be that Mom waits until child is older, and then she sues Dad for the back support.

There are ways to avoid these traps.  If Dad denying Mom’s parenting time in violation of a  court order, then a motion to enforce that parenting time may be filed.  If no orders are in place for parenting time, then a Petition may be filed to seek Court Ordered establishment of defined parenting time.  If Mom stops paying child support, it is a better option for Dad to seek enforcement of the support order than deny Mom parenting time.  One, denying parenting time for that reason is most likely not in the children’s best interest.  Two, if Mom acts appropriately and files a motion to enforce her parenting time, the Court may very well frown on Dad for this behavior.

Also, if circumstances change for a parent, and that parent is no longer able to meet a support obligation, then it is best for him to look into whether a motion to modify the support order is warranted, and sooner than later.  If the parent owing support has to take a job with a significant pay decrease, the existing order will nonetheless remain in place unless that parent has it modified by Court Order.

Jason A. Márquez, Colorado Family Law Attorney

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.