Denver Divorce Talk

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.

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.

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.

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.

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.

Worried about the impact religion might have in your case? Depending on the case, your concern might be well placed.

Faith is a powerful factor in many families. Parties, judges, lawyers - we all have our thoughts on religion and the role it might play in our family life. For example, faith can become a factor in a family law case when a party’s faith is targeted by the public as fringe, or “cultish”, or fundamentalist. Parties understandably worry about prejudices the other people involved in the case might have toward their religion.

Faith can also be a factor because it passes judgment on our actions, or on the divorce process itself. Religion may condemn a parent for making the choice to move out of the family home, or for seeking a divorce in the first place. Many faiths consider divorce an abhorrence and ostracize the electing spouse. And, of course, some faiths seeks to find blame, or assign fault, for the underlying reasons a divorce is sought.

So passionately are these beliefs held that its important to evaluate your selection of the professionals involved in your case to the extent your can. Child and Family Investigators (CFI) and your lawyers are the most obvious professionals over whom you have the greatest degree of control in the selection process. Before deciding to hire these individuals you should ask yourself whether you think they respect your faith, respect your choices, and empathize with your position.

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.

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.

Upon a military service member’s return home from a long deployment necessitated by war, he or she is undoubtedly eager to reunite with family and friends. Unfortunately, if a service member happens to be the parent of a minor child, he or she may arrive home and be confronted with yet another battle.
Should a military parent be divorced, separated, or no longer involved with the other parent of his or her child, it is very likely that plan was established to allocate parenting time and responsibilities. Whether this plan was made by agreement between the parties or by Court Order, the plan may or may not have addressed whom the minor child would reside with during the military parent’s deployment. Even if the plan addressed what happens in the instance of the military parent’s deployment, what happens when that parent arrives back home and wants to resume his or her former parenting schedule?
A recent CBS news report addressed this very situation. The CBS news report concerned a military service member who is also the mother of a minor child. Upon her deployment and pursuant to her family care plan, she temporarily transferred her status as the child’s primary residential parent to the child’s father. The problems began when she arrived back home and was informed by the child’s father that she needed to obtain legal counsel. According to CBS, the father refused to return the parties’ minor child to the mother and resort back to the parties’ parenting arrangement in place prior to her deployment.
Congressman Mike Turner from Ohio has introduced legislation that attempts to resolve this issue. This legislation would set federal standards and guidelines for domestic relations judges to follow concerning a service member’s parental rights. However, the Department of Defense argues against the bill, and believes that because this issue has historically been left to the states to decide, the states are better suited to handle it. As the Department of Defense has successfully stifled the bill since 2007, the future of these provisions is unknown. However, as this issue appears to be gaining national attention, we will continue to follow the bill’s progress.
To read more, go to: http://cbs4denver.com/national/military.parents.custody.2.1366749.html