Denver Divorce Attorney

The Parental Evaluation Gap: How the new CFI Rules have created a problem for divorcing middle class parents and possibly a new opportunity for licensed therapists.

2011-12-13T16:12:00.000-08:00

Happy Holidays Everyone!
I know for many people who are contemplating divorce that the holiday season can be very trying and I imagine that if you are a therapist you are very busy helping people through this time. In fact, statistically, most people wait until the holidays are complete before they move forward with a divorce. Understandably so.

New Need for 2012 custody cases
However, I expect that in January, as in all prior years, there will be a large number of people calling who want to begin the divorce process. This year there will be a new issue facing parents that are divorcing who cannot agree on parenting time schedules and decision making processes. In the past, they would typically hire a CFI, (Child and Family Investigator) to assess the situation and make a report to the court on what parenting plan they see is in the best interests of the children. Given the changes to the CFI rules, this general evaluation is no longer possible. The new rules require that CFI's do narrow, fact based investigations only, with no analysis of the parent's abilities or psychological issues. There is also a $2,000.00 cap on CFI investigations and reports to assure that they are not broad or too in-depth. Many CFI's have said they will no longer do this work due to the financial cap.

So, if parents need a full child custody assessment the only other court ordered option available is what is called a Parenting Responsibilities Evaluation (PRE). This can only be done by a licensed professional therapist (CFI's can be done by attorneys or non-licensed individuals). In the past PRE's were VERY in depth and often cost more than $10,000.00 and were most often done by PhD's when there were allegations of parental psychological or addiction issues. This is why CFI evaluations had become the primary custody evaluation tool for middle income parents. As you can see, this creates a major gap in what is available in court ordered child custody evaluations.

New Opportunity to fill the GAP
For 2012 we are going to need a new form of a Parental Responsibilities Evaluation. One that can fill the gap left by the narrowing of CFI investigations. We need a PRE that is somewhat abridged, deals with the specific issues at hand, assesses the family dynamics, includes psychological analysis as needed and one that can be done for a reasonable fee. This would be a breakthrough for our legal system in that it assures that you are using a licensed professional therapist for evaluating parental abilities and recommending a parenting plan while also making it affordable to the average parent.

Who can fill this gap?
Here are the qualifications for a Parental Responsibilities Evaluator:

A licensed Mental Health Professional who is competent by training and experience in the following:

The effects of divorce and re-marriage on children, adults and families.
Appropriate parenting techniques
Child and Adult Psychopathology
Applicable clinical assessment techniques
Legal and ethical requirements of a PRE

It seems to me that you do not need to have a PhD to fulfill on these qualifications. Depending on your specialty, I think that a good number of licensed professional therapists can fit well into these qualifications.

I believe that it is time to create an evaluation service/ tool that makes PRE's viable for the middle class divorce client. As a family law attorney, I am VERY interested in seeing this developed and I am open to collaborating with therapists that wish to understand what attorney's and parents need to fill the parental evaluation GAP. Please feel free to get in touch with me at leslie@matthewslaw.com to discuss this opportunity. I also intend to put together a round table discussion on this topic in the beginning of 2012. I will let you know on this blog and on our website at matthewslaw.com when it is scheduled.

I do not want to discourage people from continuing work as a CFI. There is certainly still a need for CFI work. It will be more narrowly defined by the court and will not go over $2,000 in fees but there will be a higher volume available since many former CFI's will no longer be participating. The cap also makes CFI investigations available to people on tighter budgets.

I believe that the changes in the CFI rules have presented an opportunity to re-evaluate what is really needed in a full custody evaluation and how it can be done at a reasonable cost. I am hopeful that the present GAP will be filled with something better than what our system has had in the past and something that will serve children and their best interests in these difficult situations.

Please forward this discussion to any licensed therapist you know who might be interested in designing a great evaluation process for divorcing families who need help deciding what parenting plan is best for their children.

Leslie Matthews

Where's the Money?: collecting child support or maintenance judgements

2011-11-04T10:18:00.000-07:00

The Frustration and the Decision to Move Forward or Not:
I speak to a number of people (mostly women) every month about bringing an action against their former spouse for back child support or maintenance. Sometimes these women have sued before and been frustrated by their inability to collect the judgement. They want to know what it would take and what it will cost them to actually collect the back support and force their ex to resume payments.

I always have a straight conversation with people about the realities of motions for contempt of court, support judgments and garnishment options. It is important to make a good business decision about spending the money for attorneys fees and court costs to collect child support or maintenance owed . The law suit is only worth the time and money if you can collect sufficient money to cover the fees and costs of the litigation and then some. You also need to look at the psychological cost of the litigation process itself. How much do you need the funds? Is it worth it in terms of the affects on co-parenting? All these factors need to be considered before proceeding.

Legal Issues and New Case Law:
There are a number of different ways to address unpaid child support or maintenance:

Child Support Enforcement: You can ask Child Support Enforcement to assist you in collecting child support or in collecting child support and maintenance if you are owed both. They will not assist you if you are only collecting maintenance. Pro: You do not have to pay them to help you and they have the power to revoke the drivers license of the party not paying. Con: They are often satisfied to get very low payments and they give people lots of chances to comply. We saw a case where the ex was asked to pay $25.00 per month on 40,000.00 in back child support.
Support Judgement and Collections Action for Back Child Support or Maintenance: You can hire an attorney to go to court and get a Support Judgement that shows the amount of back child support or maintenance owed. With this Judgement in hand you can proceed to collections. You can garnish wages if they are an employee. (can be between 55% to 75% of their salary depending on the circumstances). One factor to consider in garnishing wages is to look to see if there is already a garnishment in place. They could be being garnished for the support of another child or the IRS may have a garnishment against their salary. You cannot garnish beyond the maximum percentage so if others are in front of you there may not be enough left for your garnishment. If your ex is self employed you will not be able to garnish their wages. All these factors need to be considered before moving forward with a garnishment You can also garnish bank accounts if the person has not already closed them or drained them in anticipation of a garnishment.

NEW CASE LAW: Garnishment of funds in an attorney trust account: In August of 2011, the Colorado Court of Appeals, In In re the Marriage of Rubio found that if a former spouse hired an attorney and had unearned fees in their trust account with that attorney, that it was possible to garnish those funds as part of a collection action. So, if the person you are trying to collect from hires an attorney and puts thousands of dollars as a retainer into a trust account with that attorney, you have the right to garnish that trust account if you have a support judgement.

Contempt of Court: If you have a court order that states that the other party is supposed to be paying child support or maintenance and they are not doing so, they are in contempt of court. A contempt of court action is quasi criminal in nature and the judge has broad power to enforce the order including putting someone in jail for non payment. The other party does not have a right to counsel like they would in a criminal proceeding. Often times the Court will give someone one or more chances before they put them in jail. This means that you have to go back to court a number of times and incur the attorney fees that this requires. Also, a defense to contempt of court is that they are unable to pay and still meet their reasonable needs. So you need to consider if this defense will succeed. The money will still be owed but the court may order much smaller payments.
Motion to Enforce: This action can be brought but it does not have the semi criminal nature of a motion for contempt. The court still has the ability to impose sanctions on the party that is not paying.

It is important to fully consider the potential benefit and the costs of any action. Not all attorneys will calculate with you to determine if it is worthwhile to move forward. Also, many will not inquire about the psychological or parenting issues that should also be considered. So, please make sure you ask for these assessments before you decide to move forward.

LEGAL ALERT: New Rules and Role for Colorado CFI's

2011-09-26T09:34:00.000-07:00

Why have changes been made?

In April of 2011 the Chief Justice of the Supreme Court of Colorado made the first in a series of expected changes to the way the Colorado Court System will utilize the services of Child and Family Investigators (CFI's).

Following a history of numerous complaints to the courts involving issues with CFI’s, the Chief Justice of the Colorado Supreme Court ordered a multidisciplinary committee to investigate, look for trends and make recommendations to address any systemic issues that were identified. This committee, called The Standing Committee on Family Issues, included judges, attorneys and mental health professionals.

The largest trend identified by the Committee was a drift in the use of CFI’s over time that had resulted in the practice of using CFI’s in a way that was indistinguishable from the use of Parental Responsibilities Evaluations (PRE’s). The specific legislative intent in creating CFI’s had become lost in practice.

Changes made as of April 2011

CFI’s were originally designed to be narrow fact-finding investigations that were observational and objective in nature whereas PRE’s were designed to be broad based parenting evaluations that included observation as well as psychological analysis and testing. This original distinction is why the qualifications for CFI’s were so distinct from the qualifications required for PRE’s.

- A CFI can be an attorney, a mental health professional or any qualified individual with and independent perspective acceptable to the Court. You can see that this leaves a lot of room for a court to appoint a variety of people from many walks of life to be a CFI.

- In contrast, a PRE appointee must be a licensed mental health professional that is competent, by training and experience in the following:

The effects of divorce and re-marriage on children, adults and families,
Appropriate parenting techniques,
Child and adult psychopathology,
Applicable clinical assessment techniques, and
Legal and ethical requirements of a PRE.

As of the writing of this article, the Chief Justice has amended Chief Justice Directive 04-08 that sets out the rules for CFI’s as follows:

There is now a $2,000.00 cap on CFI investigations. This cap cannot be changed unless there is an order of the Court specifically finding extraordinary circumstances that justify fees and costs that exceed this cap.
The CFI is no longer allowed to perform psychological testing or drug and alcohol evaluations themselves.
There is no longer quasi-judicial immunity in the order of appointment of a CFI.
The CFI no longer has the authority to conduct a meeting with parties when a protection order restrains such contact.

CFI investigations are now to be used for narrow and distinguishable issues and the Court is required to give specific instructions on the narrow issue to be investigated. An example might be an issue regarding how the child is doing in school under the current parenting plan or how a child might be adapting to a new household.

If there is a custody dispute where the parties cannot agree on who should be the primary parent or how parenting time or decision making should be allocated, or if there is a question as to a parties mental health or ability to parent, then the appropriate action is to request a full PRE with a licensed mental health professional that is qualified under the PRE rules as described above.

Potential future CFI rule changes and remaining work for the Committee in 2011 include:

Examine the most effective, efficient and economical process for training and continuing education for CFI’s
Establish protocols that require criminal background checks for all CFI’s and require CFI’s to report violations of the law and professional disciplinary actions or lawsuits filed against them.
Explore how to establish a statewide list and how to work with local district courts to identify and appoint CFI’s who are qualified and acceptable to the court.
Improve the process by which a complaint about a CFI is made and considered by the court.

I have created a more detailed comparison chart to compare the use of CFI’s with PRE’s that I will make available on our website at www.matthewslaw.com. You can also give me a call if you have a specific question at 303-329-3802.

The Valuable Divorce: A blueprint for a post divorce family that works

2011-06-08T15:06:00.000-07:00

One in two marriages end in divorce. Once this was just another statistic, no surprise to anyone. Now, however, if you are contemplating a divorce or actually engaged in one, that statistic has become a personal crisis. A divorce creates an upheaval in your life. Regardless of how amicable you think it might be, a divorce is a potential vehicle for creating untold suffering for you and others in your family, especially children. Just ask a few people who have been through a divorce.

Why are so many divorces emotionally draining and nasty? Because, in many cases, there is an established pattern for the way people behave during a divorce. Even when things begin amicably, during the divorce people tend to develop animosity, emotional turmoil and sometimes, unprincipled behavior in gaining leverage over the other party even when it runs counter to their own core values. People usually get emotionally “hooked” sometime during their divorce process and they loose perspective on the long-term results of their very “human” reactions to what is happening.

Divorce is often viewed as the end of something and people behave accordingly. Some see it as an end game with a winner and a looser. Some desperately want to just “get it over with” and move on to a “new” life.

The truth is that when there is a family involved, Divorce is the beginning of something else. The Divorce process itself builds the foundation for the family’s post divorce relationships. A post divorce family relationship is unavoidable if you care about your children and it can last for many, many years.

I speak from both professional experience as a family law attorney and personal experience with my own divorce in the late 1980’s when I say that a nasty divorce, with lots of unresolved feelings and reactive behaviors can lead to years of suffering for the family long after the divorce process is complete. Regardless of weather you feel the results of the divorce action were in your favor or not.

The Possibility of a Valuable Divorce
In our experience, the divorce process does not have to be this way. There is another possibility. It requires the right team of people and a process to support you in achieving what we call a “Valuable Divorce”. If I had had access to this process in the late 1980’s, I could have possibly avoided years of feeling victimized by my ex-husbands behaviors and, more importantly, addressed the source of my daughter’s emotional pain around the way her father handled our parenting agreement.

In other cases, families do find themselves back in court over and over again because the “Legal Agreement” just does not handle the unresolved way in which the divorced parents relate to each other and their children.

The Valuable Divorce Process provides you with the assistance you need to create a Post Divorce Family that works. It is a combination of legal representation and divorce coaching that works together to support you in building a new foundation for your post divorce family relationships. Both sides do not have to participate for it to work, although it is great when it can happen. The Valuable Divorce Process has a beginning, middle and an end. Step by step, the Process tracks with the necessary actions you must take in your Divorce Proceeding while supporting you to make smart long term decisions and create a new set of agreements and behaviors you need to have the family work in a post divorce setting.

Here at Matthews & Matthews we have created a coordinated step by step process to generate a Valuable Divorce and a Post Divorce Family that works. For more information about the Valuable Divorce process please call Leslie Matthews at 303-329-3802.

Marital vs. Separate Property Update: Marriage of Cardona and Castro No. 09CA1996

2011-05-11T12:52:00.000-07:00

In a recent opinion, the Colorado Court of Appeals reviewed two questions relating to the treatment of separate real property in a divorce. They also made one new determination in the treatment of accrued vacation and sick time as property to be divided.

How the Divorce Court Treats the Re-Invested Proceeds of a Home Purchased Prior to Marriage
In the Case of Marriage of Cardona and Castro, the wife had sold a condominium, during the marriage, that she purchased before the marriage. She used the proceeds of the sale ($100,000.00) in the purchase of a marital home. The Trial Court had set aside funds to reimburse her for her initial contribution of separate property towards the purchase of the home. These funds were not considered part of the division of the marital estate.

The Court of Appeals corrected this error on the part of the Trial Court by pointing out that in Colorado, there is a presumption of a gift to the marriage when separate funds are used to purchase a marital asset; in this case the marital home. So, if you sell the home you owned prior to the marriage and put the equity into another home during the marriage, that entire amount becomes marital property and is subject to division upon divorce. The only way to overcome this presumption of a gift to the marriage is to show, through evidence, that your intention was for the separate equity to remain separate property. For instance, you could have a post-nuptial agreement that states the financial contribution of separate property to the marital home is intended to remain separate property. The evidence needs to be stronger than retrospectively stating that this was your intention.

The bottom line is that if you want to keep the proceeds of a sale of separate property separate, you need avoid co-mingling it with marital assets. Keep the proceeds in a separate account with only your name on them, or, if you put them into a marital asset like another home, execute a post-nuptial agreement stating your intent for those proceeds to remain separate.

When Marital Funds are Used to Pay down the Debt on Separate Property
Let's say that you own a home that you purchased before you were married. That home is your separate property and it should not be part of the division of marital assets. However, if that home has increased in value during the marriage, that increase in value is marital and will be considered in the division of marital assets.

In Marriage of Cardona and Castro, the Court of Appeals took this one step further. Beyond the increase in value, there is also another possible marital component to a separate property home. Take the situation where there is no increase in the value to the home during a marriage. Lets say that you are in a recession and the value of the home has stayed stable in the last 5 years. However, during those same 5 marital years, the owner of the home (married) has been paying down the mortgage so that there is now more equity in the home because the debt has been reduced during the marriage. In Marriage of Cardona and Castro, the Appellate Court found that the increase in equity in the property based on the use of marital funds to pay down the dept is marital property. In other words, if the debt has been reduced by 20,000.00 during the marriage, even if the value of the property has not increased, the equity has and that 20,000.00 in increased equity is marital property.

Is Accrued Vacation and Sick time a Marital Asset?
The last separate vs. marital property issue addressed in Marriage of Cardona and Castro involves accrued vacation and sick leave time. This is an issue of first impression in Colorado. The question is: Is accrued leave time a marital asset to be divided on dissolution of a marriage? In Cardona, the Trial Court held that the husband's accrued leave time was valued at $23,232.00 and required him to pay $11,615.00 of that value to his wife as part of the division of marital assets. The Appellate Court disagreed stating that accrued leave time is NOT a marital asset and not divisible on dissolution of marriage. The rational was that the value is contingent upon using it or not.

If you have further questions about marital and separate property please click here for more information.

How is Child Support Calculated in Colorado?

2011-04-22T15:05:00.000-07:00

The Child Support Formula
Here in Colorado, child support is calculated using a formula. There are exceptions for high income families, but for the most part the formula is utilized.

There can be exceptions and complexities to the formula but, for the purposes of this blog post, I am going to talk about the general information you need to understand how the formula works.

There are three major factors that go into the formula:

1. Gross Income
Each parent's gross income is placed into the formula. If you are a salaried employee this is relatively simple. Bonuses are included and can be averaged over the past few years. Overtime is not considered gross income.

If a parent owns a business then it is somewhat more difficult to come up with a number for gross income. Tax records are usually utilized to come up with an average figure for income. However, depending on how the business is run, there could be arguments on what the gross income really is. There is some complexity around stock options and income in kind like company cars and frequent flyer miles.

There are issues that pop up around things like disability income and income from personal injury settlements. If there are issues in your case, please feel free to give us a call to discuss in more depth.

2. Overnights with the Child or Children
The second number that is placed into the formula is the number of overnights per year that each parent has with the child. If you are with your child all day but you return them to the other parent at night, you do not get to put that day into the formula. Only an overnight counts. The more overnights you have, the less you will pay in child support and vice-versa.

In some cases, parents will agree at first to a small amount of overnights and then change their mind when the find out that there is such a dramatic effect on the amount of child support they will have to pay. It is important to be realistic about overnights. I have seen scenario's where the Dad says he wants 50/50 parenting time, it is agreed to as part of the parenting plan and child support is calculated based on 50/50, only to find that the Dad does not utilize the 50/50 in practice. He has received the benefit of the 50/50 parenting time in the calculation of child support but is inconsistent in using his right to parenting time. The Mother ends up with less child support than is needed given that she is really doing the majority of the parenting time. Now, this can be brought back to Court in a Motion to Modify Child Support and Parenting Time but it is much easier and less expensive to get it right the first time.

3. Extraordinary Expenses:
The third basic element to put into the child support formula includes any expenses that the children have on a regular basis that are out of the ordinary. This could include regular medical expenses or extracurricular activities. Whoever is paying for medical insurance and/or child care can get credit for doing so in the formula.

Also, if one parent is paying child support already for other children, this will be entered into the formula as well.

Modifying Child Support:
You can go to Court following the initial determination of Child Support to Modify the amount of Child Support if there is more than a 10% difference in the bottom line of the Child Support Calculation due to some sustainable change in circumstances. For instance, one parent may now make significantly more or less gross income or one parent may be exercising significantly more or less parenting time (overnights) than originally agreed to in the formula.
This outline provides a very basic understanding of how Child Support is calculated in Colorado. Each case must be looked at with all the unique circumstances in mind and I would highly advise speaking with a family law attorney to estimate the amount of Child Support that you can expect in your case.

After Divorce: Medical Evaluations for Psycotherapeutic Drug Perscription for Children when there is Joint Decision Making

2011-03-18T15:45:00.000-07:00

It is hard enough to make decisions around prescription drug therapy for your child, but when it involves divorced parents it can become an area of conflict in co-parenting. Talk about escalating an already stressful situation.

Default Joint Decision Making
Here is where the problem begins. During the divorce process, many parents just default to agreeing to joint decision making. They are often uninformed of the fact that they can carve out specific areas where decision making does not have to have the agreement of both parents. Therapy, both talk therapy and drug therapy can be one of these areas. You can have joint decision making in all areas except this one where language in the divorce decree can include a paragraph that allows either parent to initiate therapy. You can also give decision making for therapy and/or drug therapy to one parent or the other. In order to make this decision during the divorce process, clients need to find an attorney that looks out into the future with them and goes over the potential breakdowns associated with joint decision making. In many cases, this is missed.

The Emergency Exception
As a therapist, you are left, in joint decision making situations with trying to get both parents to agree to the medical evaluation. If they do not, it cannot be done. There is one exception. If it is an emergency, there is a provision in the law to allow for medical or therapeutic treatment without both parents agreeing. The question for you or for the Psychiatrist is, "Is this an emergency". If you feel that it is an emergency, you can go forward and if you are brought up on charges with your regulatory agency you would have to defend by showing the emergency nature of the problem. I would imagine (this in not legal advice) that if the child is suicidal one might reasonably say that the situation is an emergency.

Legal Intervention
Barring an emergency the parent who wants the medical eval has one other legal remedy. It is possible to go back to Court with a request to modify decision making for this one issue. This requires filing a motion and setting a hearing. Although in most cases, this can take months to accomplish, if it is about medical treatment, you may be able to get an emergency hearing date within a short period of time. During this hearing, the parent that wants the medical evaluation would have to show that withholding that treatment was an endangerment to the child's physical well being or their emotional development. The Court could then choose to change decision making regarding therapy/medical treatment to allow the one parent to proceed with the evaluation. It is important, in this situation to be able to show that the medical evaluation is necessary for the child's well being and expert testimony would probably be necessary.

Examine Joint Decision Making during the Divorce Process
It is unfortunate that co-parenting after divorce can become a problem when trying to do what is in the best interests of the child. My best advise is to counsel clients when they are in the divorce process to look at the current dynamics between them and their spouse and examine at a deeper level what joint decision making could mean in certain situations. Better to deal with these issues up front during the divorce process rather than have to return to Court later and cause undue stress and resentments between the people trying to co-parent.

Certified Divorce Financial Analysts and why they are a good investment

2011-02-22T15:15:00.000-08:00

I had lunch this week with one of the Certified Divorce Financial Analysts that we work with in our divorce cases that involve maintenance. Her name is Deb Johnson and the work she has done in some of our cases has made a critical difference in being able to reach a good settlement for our client. You can reach Deb at the Divorce Resource Centre of Colorado, LLC at 303-468-5626

I have spoken in other blog entries about Maintenance awards in Colorado, the process and the standard the Court uses to determine if there is a need for maintenance as well as the need for expert testimony and advice on what is a fair settlement in a long term marriage where the incomes of the two parties are vastly different. (see the category Divorce, Maintenance (Alimony)). In this blog entry I want to focus on the possible roles that a Certified Divorce Financial Analyst can play in a divorce.

Option 1: Advocate for your position
A Certified Financial Analyst can take all of the financial information in your divorce proceeding and come up with options and scenarios to equalize the two parties financially. This could include an unequal distribution of the marital assets and debts as well as the use of maintenance to assure that the lesser earning spouse receives the full benefit of their partnership for the entire length of the marriage. This is often very powerful evidence that can be used to settle the case or as testimony at trial to influence the Judge's decision on asset distribution and maintenance. As I have said before, using a good Certified Divorce Financial Analyst is a smart investment in your long term future if you are the lesser earning spouse.

Option 2: Bringing Clarity to Chaos
The second way you can use a Certified Divorce Financial Analyst is to go alone or with your spouse to just get a clear picture of the financial situation and what the effect of a divorce will have on each of you. Deb Johnson reviewed a couple items with me that I thought would be so useful for a divorcing couple. First she can take all the financial information and come up with a future budget and cash flow analysis for both parties. So you can see what it would really look like financially after the divorce. She can answer questions about the house and if you can afford to keep it or what the tax return issues will look like following the divorce. This process can assist with the concerns of both spouses. The spouse that is worried that maintenance will break them can see that in fact it may be possible to make it all work with the ensuing tax breaks and the spouse that has little to no earning capacity can see that they will be able to make it financially. This clarity is invaluable because people get stuck in their emotional reaction about money rather than figure out the reality of the situation. A CDFA can make the difference in bringing everyone onto the same reality based financial picture.

Option 3: Financial Mediation
One of the things that Deb Johnson let me know at our lunch is that she is now doing financial mediation in divorce cases. You can find a good mediator in Denver. In fact, we do family law mediation at our firm, Matthews & Matthews PC. However, few mediators have the financial background to do the kind of scenario planning that a good CDFA can do. Deb now offers mediation to resolve the financial issues between divorcing spouses or between non married couples or long term gay or lesbian partners. You could also do a full mediation with both financial and parenting issues addressed and have Deb take on the role of financial mediator in partership with another mediator. I can imagine that this partnership could be very powerful for a complex financial divorce mediation. The tools that Deb or others with the skills of a CDFA can bring to the tale in a mediation for outweigh what is possible with an attorney or therapist mediator when it comes to well thought our financial scenarios. I believe that using Deb or another CDFA is worth the extra cost of having a true financial expert in the mediation mix.

I am certainly glad that I had lunch with Deb this week and learned about all the ways we can use her talents to support our clients in their divorce or those that ask for legal advice but want to do their case without attorneys. These folks could also benefit greatly by spending some time and investing some money in getting a clear picture of the financial realities of their divorce situation. Too many people go through a divorce on their own and then call us later upset that they did not understand the financial ramifications of their divorce decisions. Often they want to re-open their case to correct a mistake they made and most of the time I have to tell them that it is too late. Once the divorce is final, in most cases, you cannot do anything about financial mistakes you made. Even if you do not want to use attorneys, you can at least get the financial reality of your decisions by going to a CDFA. I highly recommend it.

Magistrate vs. District Court Judge in Family Law cases

2011-01-20T12:41:00.000-08:00

Where is my Judge?
I was reading a recent Colorado Appeals Court decision today about the limited powers of magistrates in Colorado and it reminded me of the confusion that many clients have about the difference between the role of the judge in their family law case and the role of the magistrate. Often, people with divorce or child custody issues find themselves in front of a magistrate. Sometimes the result does not go their way and they wonder if they had been in front of the judge might it have gone differently.

The answer of course is: yes it might have gone differently. The Judge and the Magistrate are two different people who could interpret the facts differently. However, the question really is: What can you do if you feel that the Magistrate has ruled incorrectly?

What is the Role of the Magistrate in Colorado Family Law Cases
Lets start with the fact that district court magistrates are not judges. Although magistrates may perform functions which judges also perform, a magistrate is, at all times, subject to the direction and supervision of the chief judge or presiding judge. So, in essence, the magistrate is delegated certain duties by the presiding judge but the presiding judge remains accountable.

We have a very high family law case volume in the Colorado District Court system. In most counties, the district court judge has delegated pre-trial hearings to a magistrate in order to reduce the volume of hearings that he/she may have to personally handle. These magistrates act as the trier of fact and do produce court orders on pre-trial matters. This could include your Initial Status Conference, Temporary Orders Hearings Emergency Hearings or Contempt of Court hearings that may arise. The final hearing (trial) in a family law matter is almost always handled by the district court judge. Sometimes, it is hard to tell who will end up hearing a pre-trial matter in district court. It may be that the one or more of the magistrates are tied up and the Judge ends up hearing your pre-trial motion. This is especially true of emergency motions since they have to be fit into an already packed docket. In some counties the judge and the magistrates rotate who will hear emergency motions on a particular day. In these cases you might have a shot at choosing a day that the judge can hear your motion. But, in the majority of cases, if the judge has a magistrate you will be in front of them on your typical pre-trial motions.

What Happens if You Feel an Error has been Made?
Lets look at the differences between an order by a district court judge and an order by a district court magistrate.

District Court Judges and Motions for Reconsideration
If a district court judge has ruled against you and you feel an error has been made, you have three possible remedies with the district court itself before you have to appeal the case the the Colorado Court of Appeals. First, under C.R.C.P. 59(a) you have 15 days from the date of the order to file a post-trial motion requesting that the district court judge reconsider his/her judgment. The judge may also reconsider their judgement sua sponte (on their own) within 15 days of judgement. (rule 59(c)) Lastly, under C.R.C.P. 60(b) a district court judge may consider a motion for relief from final judgment under certain defined circumstances. If none of these motions are successful, your next step is to file an appeal with the Colorado Court of Appeals; an expensive process that can take a year or more to complete.

District Court Magistrates and the District Court Review
Magistrates are not accorded the powers of review just described above for district court judges. They may not change their judgement/order once it is entered except to correct clerical errors (C.R.M. 5(a)). They may not consider a motion for reconsideration or change the substance of an order on their own under rule 59(c).

The remedy you have if you feel that the magistrate has made an error is to ask for a District Court Review. The district court judge may alter a magistrate's findings of fact if those findings are clearly erroneous. C.R.M. 7(a) (9).

No New Evidence Considered in a District Court Review
As you might imagine, a district court judge does not want to thoroughly review every court order issued by a magistrate. This would make the efficiencies of using a magistrate moot. So, in most cases, just because you don't like the verdict of the magistrate it doesn't mean that the judge is going to overturn it. In many cases, the judge will support the ruling of the magistrate. However, if you really feel that the facts of the case clearly do not support the magistrate's ruling, the Motion for District Court Review is your best bet.

It is important to note that when the judge does a District Court Review of the magistrate's ruling they are only able to look at the transcript of the hearing and the evidence that was presented. No new evidence that may have arisen since the original hearing with the magistrate will be considered. The Judge is looking at the record of what happened at the pre-trial hearing in question to see if an error occurred in the law or if the findings of fact were clearly erroneous.

If you need more information on the topic of Magistrates and how they are used in Family Law cases in Colorado please give Leslie Matthews at Matthews & Matthews PC a call at 303-329-3802.

Parental Alienation Syndrome being considered for inclusion in the DSM: How will this effect custody disputes?

2010-12-08T09:57:00.000-08:00

Reported In The Denver Post:
The Denver Post reported last Sunday, December 5th, 2010 that Parental Alienation Syndrome (PAS) is being considered for inclusion in the fifth edition of the 2012 Diagnostic and Statistical Manual of Mental Disorders (DSM). The DSM is updated every decade or so and is a therapist's official catalog of mental disorders.

Emotional Damage to Children:
Experts state that when you look at the emotional damage done to children by alienation, it's really striking. The children in such situations suffer tremendously, writes Reena Sommer, an authority on PAS. Such children are made to feel their love and attachment for one parent is contingent on their abandoning the other.

PAS perpetrated by Men and Women:
Women used to be thought of as the main perpetrators of parental alienation, but no longer says Judith Ray, a licensed family therapist in Colorado Springs. Those men tend to be narcissistic, characterized by a sense of entitlement, arrogance and low empathy. Female alienators often have borderline personalities, marked by insecurity, neediness, a strong fear of abandonment and chronic emptiness.

The Denver Post looked at both sides of the issue and concluded that studies documenting PAS's long term damage make it clear that it belongs in this all-important catalog of officially recognized mental disorders.

Inclusion in the DSM will support evidence in custody cases:
If PAS makes it into the 2012 edition of the DSM, it will only reinforce and strengthen evidence brought of Parental Alienation in child custody disputes in Colorado. Evidence of PAS has been used in Colorado family law cases for a number of years. Inclusion in the DSM will enable therapists to testify that a child has an official diagnosis of PAS and a treatment plan can be recommended to the Court. This takes alienation out of the realm of fairness between the parents and places it on solid ground as a concern for the best interests of the child's mental health and emotional development.

Heavy burden of proof to change primary parent:
In Colorado, if you are trying to change primary custody from one parent to the other, you have an uphill battle. The standard to change primary custody is "does the present custody situation endanger the child's physical well being or endanger their emotional development". This is a much higher standard than "the best interests of the child" standard used to assess initial parenting plans in a divorce. Inclusion of Parental Alienation Syndrome in the DSM will provide parents the opportunity to bring evidence of damage to the children because of PAS. This evidence could help to support meeting the burden of proving endangerment to the child's emotional development.

Time will tell how this change in the DSM will effect the results in custody disputes involving PAS. In this attorney's opinion, the change can only increase the chances of being able to develop Court Ordered therapeutic interventions to support the healing process needed when children have been exposed to severe parental alienation.

Announcement: Matthews & Matthews Announces Family Mediation Services

2010-11-09T15:16:00.000-08:00

Matthews & Matthews expands services to include Family Law Mediation
Matthews & Matthews PC has expanded their family law services to include Family Law Mediation. Mediation services are now offered by Leslie Matthews, the Firm's Managing Partner.

Information on Leslie Matthews J.D.
Ms. Matthews began her professional career as an Trauma Intensive Care Unit RN and has been licensed to practice law since 1986 . Leslie has practiced law in both state and federal courts in Texas as well as Colorado and she is Certified as a Mediator through the Colorado Bar Association. Ms. Matthews began her practice in environmental and toxic tort litigation in the late 1980s before moving to Colorado. She now practices family law exclusively. She has a strong belief in providing a high level of personal service to her clients and a commitment to looking for the best long term results for her clients and their families. Leslie is an official consultant to the Colorado Marriage and Family Therapists Organization and provides the Organization with training in family law. She also works with the Organization on collaborative approaches between attorneys and therapists to support families through the divorce process.

Preparation for Mediation is a Key to Success
Ms. Matthews brings her years of experience in family law and litigation as well has her wholisic approach to resolving conflicts. Ms Matthews advises that the right level of preparation is key to producing a good long term result in mediation. We ask for copies of the financial disclosures, all reports and have separate pre-mediation phone calls with the husband and the wife before we mediate states Ms. Matthews. This preparation makes all the difference in having a mediation that works. Ms Matthews also drafts a memorandum of understanding for mediation clients that contains everything needed to submit to the District Court to settle the case.

Mediation Philosophy
After working with divorce clients for many years, it is clear to me that resolving disputes in mediation can be the very best route in a number of situations states Ms. Matthews. The idea of resolving your conflict and coming into alignment together, especially on parenting issues can form the best foundation for operating together as a post divorce family. Mediation is not always the best route, especially in cases where there is an extreme imbalance of power between the husband and wife, but in many cases it can be the very best solution.

If you have questions about whether mediation is a good fit for your divorce or family law situation, please feel free to call Leslie Matthews at 303-329-3802 and she will be happy to answer your questions.

Preparing for Divorce: In some cases the right preparation can make all the difference.

2010-09-30T13:46:00.000-07:00

Obstacles to Good Preparation
For most people, just making the decision to divorce can be very difficult and emotionally exhausting. Thinking about taking specific actions to prepare for the divorce process can seem overwhelming. However, in many cases, preparation can be the pivotal factor in a divorce process that produces a fair, just and hopefully expeditious result.

Collecting the Financial Documents
All divorces require full financial disclosure. However, in many cases, both spouses do not have equal knowledge and understanding of the family finances. Once the divorce has been filed, some people find that they no longer have access to the financial information and they are left in a vulnerable position if the other side is not forthcoming regarding all of the finances. Any money that was earned by either spouse during the marriage and the increase in value of all investments are marital property. Both parties have the right to all of the financial information. If you do not handle the finances or you may be unaware of all of your family financial information, it is a good idea to make copies of all financial documentation for the past three years before the divorce process begins. You should know about all bank accounts, investment accounts, credit card debt and any other assets and liabilities. It does not matter who's name is on the account, it is still marital property if it was acquired or increased in value during the marriage and you have an equal right to these documents.

If there is a vital piece of financial information that is not disclosed, you do have five years from the date of the Petition for Dissolution of Marriage to re-open the case. However, you might not find out about it at all or even if you do, and you re-open the case, there will be significant legal fees involved. So, it is best to have all the financial information in hand before you file. Even though you might find it uncomfortable to venture into these documents and make copies, it is your right to do so and it might be very important for your financial protection.

Provide for at least Three Months of Financial Independence
Here is a scenario I have seen too many times: A stay at home wife and mother wants to file for divorce after 20 years of marriage. The couple has joint checking accounts, savings accounts, investment accounts and joint credit cards. The wife tells me that her husband would never cut her off financially. I give her my advice but she is confident that nothing will happen. She files for divorce and within two to three days, all accounts and credit cards have been cut off and she has no access to marital funds. The wife is shocked. Her Husband has never done anything like this before. Sometimes people behave in totally uncharacteristic ways when they are presented with a divorce. You just never know.

The funds still belong to her, but she can't get to them until we get a court order. Even though this is a financial emergency, the Courts in Colorado will not set a date right away to deal with a purely financial problem. In most cases, you will have to wait for a Temporary Orders Hearing. This can take up to three months to set.

To be on the safe side, it is important to know what amount of money you are going to need for a three month period. This includes money to pay the mortgage, car payment, utilities, food etc... You should assume that your spouse could stop paying for anything. You should also include the money you would need to retain an attorney and possibly other experts as well including counselling for yourself or your children. Take the time to do a budget and consider contingencies. Then, right before you file, remove 3 months of expenses from your accounts and set up an account with only your name on it. Also open a credit card with only your name on it if possible. I would let my spouse know that I did this once the Petition for Dissolution of Marriage is filed. I would have to know all the circumstance to say if and how this should be done. You should discuss this fully with your attorney. However, generally, I would send an email that tells my spouse the amount I have removed and that it is still marital funds and will only be used for day to day expenses but that you needed to feel secure about funds for the time being because you have no current earning capacity.

Counselling and Keeping a Journal
Sometimes, it is clear, even before the divorce is filed that there are and will be issues around parenting time and decision making for the children. If there is trauma in the household, physical or emotional abuse or just overt confrontation on a regular basis that the children are exposed to, consider counselling for your self or more importantly for the children. If you get the children into counselling before you file for divorce you have a number of advantages. First, while you are married and have no Court Orders, a counsellor or therapist can begin assessment and treatment with the permission of only one parent. If, later on, you have Court Orders that include joint decision making, the therapist will require the permission of both parents. Also, if there are parenting issues going on for the children, you will have someone who is an objective expert working with the children and able, after a period of time, to give an expert opinion on what is going on and what they see is in the best interest of the children.

Secondly, if there are problems with parenting, you should be making a journal of any relevant interaction. You can do this prior to filing for divorce and have a record leading up to the point when you might ask the other spouse to leave the home environment. Again, the right thing to do here depends on all the circumstances and you should talk about the best preparation steps with your attorney before you file.

In conclusion, my best advice is to meet with a family law attorney before you file for divorce and discuss what is in your best interest to do in preparation for divorce. Your attorney might not have this conversation with you automatically. You need to bring up preparation and ask for a full assessment of your situation.

If you have further questions in relation to preparation for divorce please feel free to give me a call at Matthews & Matthews PC. Our number is 303-329-3802/

Maintenance/Alimony in Colorado: How is the decision on maintenance made?

2010-09-14T16:13:00.000-07:00

I hear from people all the time that are wondering if they will be able to request maintenance/alimony in their divorce proceeding. Although there is a formula in Colorado for most cases of child support, maintenance is decided by a Judge on a purely subjective basis.

The "Reasonable Needs" test:
Colorado Courts are bound to decide issues of maintenance on the basis of the ability or lack of ability of the party requesting maintenance to meet their "reasonable needs" without financial assistance from the other party.

You can see that this first step allows for many subjective determinations. What are the "Reasonable Needs" of a particular individual? Colorado Law sets out a number of issues for the Court to look at to make this determination. These include:

-- Age and physical condition
-- Allocation of marital property to the individual in the divorce
-- Child Support given to the individual
-- Separate property of the individual
-- Standard of living during the marriage
-- Length of the marriage
-- Discrepancies of income between the parties
-- Income potential and the need for further education and training

Two Part Test:
There is a two part test for the Court to rule on in maintenance cases. First, the threshold issue the Court decides is if the party meets the reasonable needs test. If the Court finds that the party is unable to meet their reasonable needs, looking at the factors above, then they move on to deciding what amount of maintenance is warranted and for how long.

Many Moving Parts Require Strong Advocacy:
So, as you can see, there are many things for the Court to look at in determining if there will be maintenance awarded and, if so, how much and for how long. This is not the type of decision that you would want the Court to make without good solid representation. There are divorce cases where a an attorney with good advocacy skills is not necessarily needed. When you have a disagreement over maintenance, you definitely need good representation and strong advocacy to influence the Judge in their decision making process. It is worth the investment.

Settlement of Maintenance Issues:
It is possible to come to an agreement on Maintenance and not involve the Court. It is important, however to be as prepared in your negotiations as you would if you were preparing for Court. You must have a full understanding of all of the financial issues, full disclosure of all financial information and a good understanding of the relevant employment and health issues of the person requesting maintenance.

Experts may be Needed and are Worth the Investment:
In many cases, there are experts required to be fully prepared for settlement negotiations on maintenance. There are experts that can calculate scenarios that show what is necessary to equalize the parties financially out into the future. There are also experts that determine the financial needs of someone with significant medical issues and experts that assess future earning capacities and the need for further education. All of this costs money and yet it can make the difference between a fair settlement and one that leaves one spouse severely impacted by a bad financial agreement.

The Bottom Line:
The bottom line is that if you have been married for a significant period of time and there is a large discrepancy between your income and your spouse's income, you should consider making the investment into preparing well with a good family law attorney to support a request for maintenance. It is a solid investment in your long term future.

If you have questions about how your circumstance fit with an award of maintenance in Colorado, feel free to give me a call and I will be happy to answer your questions. You can call me at Matthews & Matthews at 303-329-3802.

When Parents Mutually Agree to Change their Custody Arrangement: New Court of Appeals Case makes it unclear as to when child support modification occurs under Colorado Law.

2010-08-26T16:45:00.000-07:00

Here is an example of the circumstances where the law has now become unclear:

Lets say that Bobby had been residing primarily with mom and now that he is 15 years of age, both parents have agreed to let him live primarily with Dad.

So, Bobby goes to live with Dad. Dad makes significantly more money than Mom and has been paying Mom child support since their divorce. Mom agrees that since Bobby is now primarily with Dad that he can stop paying her child support. Dad stops paying child support as soon as Bobby begins to live with him. They have a verbal agreement that Mom will not have to pay child support. They do not make any changes with the Court.

Two years later, Mom has been promoted and is making more money. Dad files for a modification of child support with the Court. He states that Mom owes him child support and that she owes back child support from the day Bobby moved in. When the child support calculations are done, in fact, Mom does owe Dad child support. The question is whether she owes Dad from the day he filed his Motion to Modify (3 months ago) or if she owes back support from the day Bobby moved in with dad two years ago? Big difference for Mom.

A somewhat similar set of circumstances occurred in the recent Court of Appeals case “In re the Marriage of White and Martin, No. 09CA0596 (Div. VI, Court of Appeals, June 10th, 2010)”. In White, the Court held that the Mother had to pay from the date the Father filed his Motion to Modify, not from the date the child changed residences.

This opinion disagrees with a former Court of Appeals case, “In re Marriage of Emerson, 77 P.3d 923(Colo. App. 2003)”. In Emerson, the Court held that under Colorado Revised Statutes 14-10-122(5), if the parties agree to a change of physical custody, that the child support of the obligor under the existing child support order, is modified from the date when physical care was changed. The Court found that the Mother became obligated the moment custody changed and thus the statute applied.

In the White case, the Court found that the mother was not obligated to pay child support under the existing child support order. Only the Father was. So the statute did not apply to her under the clear language of the statute and the general rule that the change in child support only starts from the day the Motion to Modify is filed applies.

So, now we have two cases from the Colorado Court of Appeals that disagree. We will have to hear from the Colorado Supreme Court or from the Legislature to clear this up. In the mean time, one can argue either way.

Divorce and the Elderly: Special Needs

2010-08-03T13:38:00.000-07:00

Recently we have been seeing a number of divorce cases for people over 70 years of age. In one case the wife was 80 and the husband was 88. You may be surprised, I was, but I learned quite a bit about the special needs of people divorcing in their elder years.

Legal Separation vs. Divorce: In the case of our 80 year old client, she had little income and had acquired a very small pension. Her husband had been a federal employee and had a federal pension. After researching the federal pension, we found that she would be much better off financially if she legally separated rather than divorced. She could maintain her health benefits and would be able to separately receive half of the pension check. She would loose her health benefits if she divorced and she might loose her death benefit if her husband pre-deceased her. In this case it made an enormous difference to stay married but legally separate. Our client was pleased with this option. She had no interest in re-marriage. She just wanted to live on her own. This type of inquiry is very important in divorces with people that are well into retirement.

The Stress of Change: We all understand that there is a great deal of stress associated with any divorce. However, there are added complications with the elderly. Disrupting an elderly person's surroundings and routine are particularly difficult. If you have ever assisted a family member to move from their home to a assisted living situation, you know what I mean. The added stress for the elderly in a divorce makes the support of family, friends and community a very large necessity. We had one elderly client who was adamant about divorcing but after moving out and discovering that her two adult children were not supportive, she found that her health was deteriorating and ultimately decided to move back in with her husband. She could not tolerate the stress of formulating a new life on her own. This situation might have been different with family support.

Financial Stress: Unless the elderly couple has significant personal wealth, in most cases the two individuals will not be able to maintain the lifestyle that they are accustomed to together. This includes the ability to move into assisted living as a couple. The costs of assisted living for a couple are considerably less than for two individuals. The decrease in standard of living is often the factor that can keep an elderly couple together even when they have trouble tolerating one another. However, with the increase in the number of couples where both were in the workforce for most of their adult lives, we may find more and more elderly couples willing to deal with the financial downside of divorcing after 70. What we have heard from elderly divorcing couples is that they put up with the other person's personality issues for so long and they only have so many more years to live and they just can't tolerate it any more.

I would suspect that as we see the baby boomer generation continue to age that we will see more divorces in the third third of life. There seems to be more of an expectation of life being enjoyable and an unwillingness to stay in a situation that continues to be untenable.

Matthews & Matthews in the News: Social Networking provides evidence in divorce cases

2010-07-01T13:21:00.000-07:00

On June 28th an Associated Press article came out that addressed the use of Social Networking material in divorce and child custody cases. Leslie and Ken Matthews were featured in the article discussing Social Networking posts as evidence. To read the article as published in USA Today click here.

Given the Social Networking craze that has evolved over the past few years, this is an important topic to address in the divorce and post decree context. Most people do not pay attention to their security settings on Facebook and other networking sites.

If your soon to be ex or your children or mutual friends see something on facebook that they think might be relevant in your divorce or child custody matter, they can get that information to your ex's attorney. Facebook pictures and statements are being used more and more to impeach testimony or as an admission against interest. The article cited above discusses a number of examples and here are a few more:

-- In a child custody case the mother states that the children should not spend overnights with the father because of his drinking habits. The father claims that he has quit drinking for some time. The wife discovers pictures and statements on his Facebook page showing him very obviously drunk and doing shots at a party the prior week.

-- A father claims that he does not have the income to provide the child support requested. Ex wife discovers pictures and statements on Facebook showing him taking the kids on flying lessons. Question: Where is the money coming from for flying lessons if you cannot pay your child support?

-- Wife claims that her husband is threatening her and that she needs a Protection Order. Evidence includes threatening emails as well as threats made on Facebook.

The point to be made here is that Facebook is not private and chances are good that if you are saying one thing in Court and the opposite on Facebook, you are going to find yourself caught in a difficult position.

Psychological Parent: When can a non-married, non-biological Dad establish Paternal Rights?

2010-06-07T13:56:00.000-07:00

Can a non-married man who is not the biological father of a child, establish the legal rights of a father? The answer in Colorado is yes, under certain circumstances.

Lets look at the facts from a recent Court of Appeals Case; In Re Parental Responsibilities of A.D., 09CA0756 (Colo. app. 4-1-2010):

Petitioner and Mother had a relationship that ended in 1999. Mother moved away and gave birth to the child in question in August of 2001. Mother and Petitioner reconciled and moved back in together when the child was 11 months old. They lived together as a family until January of 2007 when Mother broke off the relationship and moved in with her current husband. The child, then six years old, spent several overnights per week with the petitioner for approximately one year. In February of 2008, the Mother discontinued the child's contact with petitioner.

The Petitioner brought an action for Allocation of Parental Responsibilities, stating that he was both the presumed natural Father and that he also had standing to bring the case due to his contact and care of the child following the parties break up.

At trial the Petitioner admitted that he was not the biological father of the child. The alleged biological father was notified of the action but lived out of state and chose not to participate.

1. Presumed Natural Father
You may have heard that if you are married when a child is born to your wife, that, as the husband, you are presumed to be the natural Father. However there is also a lesser known provision that applies to a non-married male partner. Section 19-4-105(1)(d)of the Colorado Revised Statutes states " a man will be presumed to be the natural father of a child if he received the child, while a minor, into his home and openly held the child out as his natural child." This presumption may only be rebutted by clear and convincing evidence. The law also states that the presumption is rebutted by a court decree establishing paternity of the child by another man.

In this case the only other potential father was notified but chose not to participate in the action. The Appellate Court held that the Petitioner's admission that he is not the biological father does NOT NECESSARILY rebut the presumption that he is the natural parent when there is no Court Decree that establishes the paternity of another man.

2. Psychological Parent
There was a second legal argument in In Re Allocation of Parental Responsibilities of A.D. that the Court did not address since they found that the Petitioner was the presumed natural father and therefore had the legal rights of a father.

The second argument relates to establishing a relationship as a psychological parent. Colorado Revised Statutes, section 14-10-123(1)(c) states that a person other than a parent may bring an Allocation of Parental Responsibilities action if they have physical care of a child for six months or more, if the action is commenced within six months of the termination of such physical care.

In this case, the Petitioner had physical care of the child several overnights a week for a year following the break up. The Trial Court had found, by clear and convincing evidence, that Petitioner had standing to bring the Allocation action and that he and A.D. shared a preexisting bond of love and affection, that he was A.D.'s psychological parent, and that the child would face possible trauma if she lost all contact with him.

The Appellate Court did not rule on this issue, however, it does form the basis for a strong argument that, even if the Petitioner had not been found to be the presumed natural parent, that under 14-10-123(1)(c) he could establish parental rights. It is important to note that this section only applies because he spent significant independent time with the child after the couple broke up. If the Mother had cut off the relationship immediately when she left, this section would not have applied.

The point remains that the Colorado Courts are going to look at the best interests of the child and if there has been a parental relationship established over a significant period of time, the Court will look for ways to retain that relationship because it is in the best interests of the child. The statutes referenced above were both ways for the Court to give the non-biological but clearly the psychological parent legal rights.

If you would like to know more about how this case relates to your circumstances, feel free to call Matthews and Matthews at 303-329-3802 and ask for Leslie Matthews.

Colorado Supreme Court Rules in the Thornhill Case: Marketability Discounts and Threshold Test for Maintenance at Issue

2010-06-02T15:06:00.001-07:00

On June first, 2010 the Colorado Supreme Court handed down it's long awaited ruling on In re Marriage of Thornhill,Case No. 08SC777.

Two legal issues were decided in Colorado Family Law.

1. Valuation of closely held business assets: Marketability Discounts can apply.
Often times, when you are dividing a marital estate in a divorce matter, a question arises as to the value of one spouse's share in an ongoing business enterprise. If that ownership share was generated during the marriage, then it is a marital asset and subject to division. When a business share is in a company that is not traded on the stock market, there may be no ready trading market for those shares. A marketability discount adjusts the value of specific shares downward to reflect the fact that there is no ready trading market for the shares.

In the Thornhill case, the husband had started and owned shares in an oil and gas service company that was not publicly traded. The Company was valued at 2.5 million, however, the Trial Court had agreed to a Marketability Discount of 33% which brought the value down to 1.625 million for the purpose of division of the marital estate. The wife argued that a Marketability Discount should not occur in a divorce matter (comparing it to minority shareholders when they are being forced out). The Appellate Court disagreed and so did the Supreme Court holding that the Trial Court does have the discretion to use a Marketability Discount if the circumstances warrant it.

2. The Parties' current "Standard of Living" should be looked at as part of the Threshold Test for awarding Maintenance:
When determining if Maintenance should be awarded, the Court looks in part at the following:
a. Whether the spouse seeking maintenance lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs, and
b. Is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the house.

The Trial Court in Thornhill considered whether Wife could "maintain her lifestyle" as part of the initial determination that she was entitled to maintenance. The Court of Appeals held that the Court should not have considered her current lifestyle or current standard of living in making that determination. They decided that the Court should only have looked at the standard of living to determine the amount of Maintenance but not for the initial determination of entitlement to Maintenance.

The Colorado Supreme Court overturned the Court of Appeals on this issue. They have made it clear that "the parties' standard of living during the marriage is in fact an appropriate-- and even necessary-- starting point for the trial court's determination of a particular spouse's reasonable needs or whether a spouse would be able to support herself through appropriate employment." In re Marriage of Thornhill, No. 08SC777,(Colo. 2010).

Here is a possible example: Lets say that a couple is getting divorced after 20 years of marriage. The wife works full time at 100,000 per year but her husband has made over one million dollars per year for the last two years. If the parties' standard of living was one that reflected their recent combined income at the time of divorce, then this would be relevant in the Court's determination of the wife's eligibility for Maintenance even though she is able to care for herself at her current income level. The parties' current standard of living is relevant to determining her reasonable needs. The term "Reasonable" is in light of their current standard of living.

If you have further questions about how this case might apply to your situation, feel free to visit our website or call our offices at 303-329-3802 and ask for Leslie Matthews.

Modifying Maintenance/Alimony in Colorado

2010-05-10T14:36:00.000-07:00

We receive many calls from people that are looking to change the maintenance/alimony outlined in their divorce decree. There are a number of factors that come into play first, to determine if maintenance can be modified at all and, if so, by how much.

Court Ordered Maintenance vs. Contractual Maintenance
Courts in Colorado cannot deprive themselves of jurisdiction and so if the Court has determined that Maintenance will be awarded, it always has the option of modifying that award if the circumstances have significantly changed. On the other hand, if the parties have come to their own agreement about Maintenance, they have the right to make that Maintenance Plan NON-MODIFIABLE. When the parties agree on Maintenance it is called Contractual Maintenance as distinct from Court ordered Maintenance. Your attorney would have to review your Contractual Maintenance Agreement to see if the language creates Maintenance that is NON-MODIFIABLE.

Modifiable Maintenance: When and How Much can it change?
If you have a Maintenance Plan that is MODIFIABLE, the next question is if a Court will make a modification. Colorado law states that a Court can adjust Maintenance if there has been a significant and continuing change in the circumstances of the parties that renders the current agreement unfair.

Significant and Continuing Change in Circumstances
You may wonder, what type of change will rise to the level of significant and continuing. Often when people call it is because they have lost their job. Obviously, this is a significant change. However, the question is if it is a continuing change. Being between jobs is not enough to be continuing change. If however, you can show that you will not be able to get another job at the same income level then this may rise to the level of significant and continuing change.

Another example is when the person receiving Maintenance has a significant and continuing change in expenses. We have seen cases where the ex-wife lost her job due to health reasons and those health concerns were going to prevent her from going back to full time work in her field. This could rise to the level that required a modification to the Maintenance Plan.

Another example is when the ex-spouse paying maintenance retires. If this has not been handled in the Maintenance Agreement, it will need to be taken care of through a modification. The question before the Court will be if this is a true retirement or just a way to avoid paying Maintenance. The Court will look to what is common in the field or profession as a retirement age and method of retirement. There is no question that there is a change. The question is, does it need to be a continuous change that renders the current agreement unfair.

Maintenance is one of those areas of divorce law that requires advocacy. There are no formulas or measures to go by. You need to convince the Court that the change in circumstances is significant and continuing and that it renders the present agreement unfair. This needs to be done through the presentation of evidence and through a strong argument.

Feel free to give us a call if you would like to discuss your situation and see if modification of Maintenance is something that is worth advocating for.

I'm moving to Colorado: How soon can I file for a divorce?

2010-04-06T13:56:00.000-07:00

We often get calls from people that are planning to move to Colorado and they want to know if they can file for divorce right away.

Ninety Day Rule
Colorado law allows you to file for divorce once you have been domiciled in the state for 90 days.

The question then becomes; what do you have to do to establish domicile. Domicile and residency are pretty much synonymous. Both are determined by the intention of the individual in question. The Court will look to acts and other evidence to support such an intention.

For instance, if you rent and apartment or purchase a home and are living primarily in Colorado, you have a Colorado drivers license, your children are enrolled in school in Colorado. These are all indications of residency.

Once 90 days has passed, you may file for divorce. It is even possible, through case law, for someone not a citizen of the United States to be entitled to a decree of dissolution of marriage in the Colorado Courts if that person meets the resident/domiciliary requirements as set forth in the statute.

What about the other party that remains out of state. Does the Court have jurisdiction over him/her?
In order to get jurisdiction over the other party to the Dissolution of Marriage Action that party must have sufficient minimum contacts with the state. The following are ways that this minimum contact can be met:

1. Filing a joint Petition for Dissolution
2. By executing a waiver and acceptance of service by the out of state party
3. Personally serve the out of state party while they are in Colorado
4. Engaging in sexual intercourse with the out of state party within the State of Colorado if there is a paternity suit or a claim for child support.
5. If the party owns real estate in Colorado that is subject to the Dissolution Proceeding.
6. If there has been an act of domestic violence in the state
7. If there is a matrimonial domicile within the state
8. In a child custody proceeding, if Colorado is the home state of the child at the commencement of the proceeding.

It is important to speak to an attorney if you have questions about the Court's jurisdiction over the spouse who is not living in Colorado. You will need to look at all the facts to see if the Court in Colorado will have jurisdiction over the non-resident spouse.

Divorcing in a Down Economy: How to reach a fair settlement on Business Valuation

2010-03-12T10:42:00.000-08:00

Businesses are Marital Property
If you are married in Colorado and you or your spouse own a business, that business is all or in part marital property. If the business was opened during the marriage it is all marital property. It does not matter if your name is listed as an owner or not.

Business Valuation is often a Difficult Task
One of the more difficult parts of a divorce process is to place a monetary value on the marital business for purposes of dividing the business between the parties. This is called the Business Valuation Process. Experts typically need to be hired to accomplish this task and, depending on the size, type and level of complexity of the business, it can become a large, difficult and expensive project.

The recent implosion of the US and world financial markets and the demise of the real estate bubble, have caused a recession that has affected most businesses in the US. This has caused a new problem for valuing businesses for the purposes of divorce.

Past Business Valuation Techniques often don't fit in Today's Economic Enviroment
In the past, Business Valuations have used techniques that are based on the presumption that the historical performance of the business is a good indicator of the future trajectory of that business. Fundamentally, the mathematical models assume incremental improvement over time. Typically, the evaluator will look at the last five years of the business to determine the present value. Even if the current year shows a lower profit level, it will be factored in with the prior four years. The result may be a valuation that is out of sync with the realities of what the recession has done to the present and future revenue forecasts for your business.

In today's business climate, it is necessary to find ways to craft an equitable division of a business with the uncertainty of the business environment in mind. Coming to a bottom line figure to use for division may produce an unfair result on either side. On the one hand, the business could be valued too high because the valuation is based on past years and the person running the business has to pay out, to the other spouse, a large amount that is inconsistent with the current conditions and possible future of the business. On the other hand, the business could be in dire straits at the time of the divorce and therefore valued low, yet have a business rebound in one to three years. This leaves the spouse who did not run the business in a position of getting too small a value because he or she just happened to divorce during a recession slump. We are just not as sure these days what the future will bring.

Flexible Solutions for Today's Economy
One solution being used by family attorneys and business evaluators these days is to look outside the box at more flexible solutions. You have to tap into more complex solutions more often used when a business partnership or other entity is dissolving or when there is a buy out of one of the owners. Some solutions that are being looked at are Earn Out Options, Liquidating Events, Stock Sharing Provisions and more.

Without getting into the complexities of corporate law, the bottom line here is that you have to craft a solution that can be flexible, at least into the near future of the business. If you reach a bottom line figure and leave it at that, you may be setting this couple up to have to go back to court time and again as business conditions change. Also, if the business soars back to health in short order following a low valuation settlement number, you might leave the non-business spouse without recourse.

The Need for Protective Provisions and Professional Oversight
In order to have flexibility built in to the separation agreement, there is probably going to be a need for a professional to have some oversight over watching the business results over time and key business changes to assure that there is no "funny business" going on with accounting to skew the numbers as you move forward. There may also be a need for business oriented provisions to be placed in the settlement agreement to assure that the non-business spouse's interest in the business is protected into the future outlined in the agreement. Maintenance/Alimony may have to go to a sliding scale to avoid the attorneys fees it would take to go back to court over and over as the business re-stabilizes. There are a number of avenues to take for overseeing the future of the business. These avenues can run from working together with a financial expert in periodic review meetings to mediation or to working with a Special Master.

Consider Collaborative and Creative Solutions
The need for flexibility in the division of business interests needs to be considered in today's business climate when contemplating a divorce. Creating and maintaining a collaborative atmosphere to come up with a flexible solution is best given the lack of stability in today's business environment. The more creative the couple is willing to be in problem solving the uncertainty of the business's future the more likely they can come to a result that is equitable.

Every business and business sector is unique. You will need to work with your attorney and the appropriate experts to come up with a solution for business valuation in your particular case. There are still cases where a bottom line value can be reached, but in today's economy it is wise to look into flexible solutions as an option.

Losing Control: When Divorce and Dependency and Neglect Cases Intersect

2010-02-02T10:20:00.000-08:00

In a typical Divorce matter, child custody is handled by the District Court that is handling all matters pertaining to the divorce. The District Court Judge is required to take action in the best interests of the children but does consider the interests of the parents as well. However, there are instances where the District Court looses it's jurisdiction over child custody. This occurs when there is a Dependency and Neglect Action (DNN) filed by the State regarding the child at issue in the Divorce matter. When this occurs, all child related issues including, parenting time, decision making and child support will be exclusively handled by the Juvenile Court system. The attorneys for the parents can continue to represent the parents in the Divorce matter in District Court and they can represent the parents in the DNN Juvenile matter but their ability to advocate for the parent regarding custody is significantly reduced once the custody issue has entered Juvenile Court.

The Juvenile Court, like the District Court, must do what is in the best interests of the children but their second priority is the interests of the state, not the parents. The Juvenile Court is charged with deciding if the child is "dependent" or "neglected". The focus of the Court on the parents is only as needed to decide the status of the child. There is little focus on the rights or needs of the parents except that re-unification of the children with the parents is a priority of the state because, if re-unification is possible, it is in the best interests of the child. However, even if the parent does everything they are asked to do by Social Services, there is no requirement to give the child back to the parent if the state believes that there is still a danger to the child. The State has the right to restrict parenting time as well as bring a relinquishment action to permanently remove all parental rights.

When the State Steps in
How does a Dependency and Neglect Action get started? There are certain individuals that are required by law to report possible child abuse or neglect to the state (Social Services) when they have a "reasonable cause to know or suspect that a child has been subjected to abuse or neglect or if they have observed the child being subjected to circumstances or conditions which would reasonably result in abuse or neglect". There are a number of professionals that fall into this category. For the purposes of this blog entry I will only name a few key professions. They include, therapists, doctors, public or private school officials (teachers) or employees, police officers and clergy members, child and family investigators, Veterinarians and animal protection officers. (You can see a full list in Colorado Revised Civil Statutes, Section 19-3-304)

Examples
So, if your child goes to her teacher and tells the teacher that her father inappropriately touched her or beat her or if the child looks significantly neglected, that teacher is required to report these facts to social services. The same would be true if a child revealed information to a therapist that lead the therapist to reasonably believe that the child was being abused or neglected. Another example is if the police are called during a domestic dispute and they find that there are conditions at the home that make it unsafe for the children. I have seen this happen when the police find the mother severely intoxicated or find drug paraphernalia in the home or find sanitary conditions that are at the level of being unsafe conditions for the children. The police are obligated to report a reasonable belief that the children are unsafe by reason of abuse or neglect. Another possibility is that during the Divorce action, a Child and Family Investigator is appointed by the Court to develop a custody recommendation and during their investigation, perhaps in speaking with the child or with a third party, or just in viewing the parents home, develops a reasonable suspicion that there is child abuse or neglect. The Child and Family investigator is obligated to report their concerns to social services immediately.

Different ways the State can step in

Informal Adjustment
Once there has been a report to Social Services, there is usually a Social Services investigation. The investigator can recommend an Informal Adjustment which means that Social Services is going to try to intervene without bringing a formal DNN case. If this is the case, the District Court should be able to maintain their jurisdiction in the case and the Juvenile Court will not get involved. If this occurs, my recommendation is to do everything that Social Services asks for to avoid having the case be brought in Juvenile Court. Perhaps, in working with Social Services the parents can stipulate to a custody settlement in District Court that incorporates the Social Services plan but also considers the needs of the parents.

Bringing a DNN Action
Social Services can decide following their initial investigation to bring a Dependency and Neglect action (DNN). Once this occurs, the custody matter will completely handled by the Juvenile Court inside of the DNN action. The State will have a great deal of control and power in the case. There will be a Guardian Ad Litem assigned to represent the child's interests and The County attorney will represent the State's interests. The Respondents are usually one or both parents and the parent's interests are the lowest priority of the Court.

Records from a DNN Action
If you are in a Divorce action in District Court and there has been a prior DNN action and you want records from that action to use in the Divorce action you may find it difficult to get access to those records. The policy is that the parties to a DNN action need to be able to do their treatment plan to re-unify the family without the fear of records being used against them. So as an attorney for the Mother in a Divorce Action, I would be able to get the records in the DNN that pertain to Mom but I would not be able to get the results of the father's psychological evaluation or the child's evaluation from the DNN Case.

Summary
If a DNN action is brought, you and your attorney will loose quite a bit of control over the disposition of Custody issues. You will be relying on the state to investigate and propose solutions. In this case it is best to cooperate with Social Services. However, If you feel abuse or neglect is occurring when your child is with the other parent, then perhaps a DNN case is warranted. You may want to have your child work with a therapist to get to the facts surrounding what occurs at the other parents home. In any event, it is important to understand that there is a distinct difference in how the custody case proceeds if it is removed to the Juvenile Court by a DNN petition.

The Lewis Case and the possiblity for expanded rights for non-married partners in Colorado

2010-01-21T13:59:00.000-08:00

Trying to fit a square peg into a round hole
In Colorado, non-married partners, same sex or male and female have not had any statutory protection when they go to dissolve a long term relationship that has operated on much the same terms as a marriage. One partner may have not worked for years during the relationship or the incomes of the two parties may be greatly divergent. They may have shared bank accounts, owned property together, have debt together. Yet at the time of dissolution, if there is a disagreement, the only legal remedies available are a stretch of law that was created for a different purpose such as implied contract law or the equitable remedy of unjust enrichment. Attorneys in domestic partnership cases have also tried to fashion alternative remedies out of the law of constructive and resulting trusts or corporate laws involving joint ventures. However, nothing is specific to an unmarried domestic couple and there is no statutory law to look to as there is for married partners who divorce.

So, people in non-marital domestic partnerships do not have a clear avenue to clear up their disputes. In most cases, what is available does not end up with a result based in equity.

Best Case at the present time
At the moment, the best a non-married couple can do is draft up a Co-Habitation agreement/ Domestic Partnership Agreement that speaks specifically to how assets and debts will be divided if the relationship ends. Contract law in Colorado is available to support this type of agreement.

New Case Law is slowly expanding rights
Slowly there are new Supreme Court cases that seem to support better arguments for dealing equitably with the break up of a domestic partnership. In late 2008 the Colorado Supreme Court ruled in the case of Lewis v. Lewis. The Lewis case discussed the equitable remedy of unjust enrichment as it applies to close family members or confidants. Confidants can be applied to non-married partners. The Lewis case rules that if there was a "mutual purpose" between confidants and one party has profited from a significant deviation from that mutual purpose, then that party is unjustly enriched.

If non-married partners have the mutual purpose to financially or otherwise support the domestic unit, take care of each other for life, and join their resources for the benefit of both, then upon dissolution of their relationship, a court could look to see if one party is unjustly enriched from the deviation of that mutual purpose.

This is the best legal argument yet for an equitable distribution of assets for a non-married domestic partnership in Colorado.

We have not seen a domestic partnership test case yet on this new and expanded legal theory of unjust enrichment. The Lewis case did not involve a domestic partnership. It involved a dispute amongst family members. However, you can certainly make the argument that a domestic partnership is a relationship between confidants.

Hope for the Future
Hopefully, somewhere in the near future, the legislature or the courts will address this inequity that people dissolving domestic partnerships endure. Until then we will continue to look for ways to utilize the laws that now exist to enable domestic partnerships to equitably dissolve following a break up.

The Effect of Domestic Violence in Child Custody Cases

2009-12-18T08:46:00.000-08:00

In their recent book "In the Name of the Child" Janet R. Johnston and Vivienne Roseby, (recognized domestic violence experts here in the Colorado legal community), recognize three types of domestic violence:
1. Physical Assault including pushing, slapping, choking, hitting etc... or the use of a weapon, sexual assault, unlawful entry or the infliction of physical injury or death.
2. Intimidation: Psychological intimidation and control that includes stalking, threats to hurt or abduct children, threats to hurt others, violence against pets, destruction of property, isolation from friends and family, lack of access to marital resources such as money. and
3. Emotional Abuse: Psychologically damaging acts inflicted within the relationship such as name calling, put downs, undermining the victim's self esteem. The experts state that this type of emotional abuse is dysregulating to the victim and is often more pervasive and more psychologically damaging to the parent than physical abuse.

Colorado Courts recognize the premise that children that are exposed to domestic violence are directly damaged by the experience even though it does not directly involve them. Johnston and Roseby describe this phenomena by stating that the perceived threat of danger or death of the caregiver is not limited to physical violence. Children know when their caregivers are in a state of anxiety, fear, rage or dissociation. The child's brain literally mirrors the parent's nervous system arousal and the child literally and physically experiences the parent's state of being, the trauma state as well as the aggressor's rage state. This is very damaging to the child in both the short and the long term.

For this reason, Colorado has laws that allow Judges wide discretion when there is evidence of domestic violence to provide protection to the victim as well as adapt parenting time to assure that the children are not exposed to domestic violence.

There are a number of avenues available to the victim of domestic violence in a custody matter.

There are three legal avenues to take. The first is Criminal Charges, the second is a Dependency and Neglect Action and the third is the Family Law Domestic Court System.

1. Criminal Charges: If domestic abuse has occured in front of the children and the police are called and criminal charges filed, then the district attorney is going to decide weather or not to bring a no contact order before the Court under criminal laws that would prevent the perpetrator from having any contact with the victim or the children.

2. Dependency and Neglect Proceeding: To bring a Dependency and Neglect action, Social Services would have to be involved. This is a quasi criminal matter brought by the state and in many cases of D&N domestic abuse, drug or alcohol abuse is also involved. The Court in a Dependency and Neglect action has the power to remove the children and place them with relatives or in foster care. The Court also has the power to terminate parental rights of one or both parents if it is warranted under the circumstances.

3. Domestic/Family Law Civil Court: This is the Court where you would file for a divorce or file for an allocation of parental rights if you are not married.

-- Temporary Protection Orders: The Civil Court can order a temporary or permanent protection order even if there is no divorce or custody matter pending. To get a Temporary Restraining Order you can go to the Civil Court in your County and show the Court that you believe there is a threat of imminent harm. Soon afterwards there will be a Permanent Protection Order Hearing held and the perpetrator will have a chance to defend themselves against your allegations. The Temporary Protection Order you receive will be extended, made permanent or dismissed. The Protection Order can extend to your children. If you have already filed for divorce or allocation of parental responsibilities you can ask for the Temporary Protection Order in the same court that is handling your divorce or child custody matter. Also, if a Temporary or Permanent Protection Order has been issued and you subsequently file for divorce, the law requires that notice of prior protection orders must be disclosed in the Petition for Dissolution of Marriage. This allows the Court to be aware that there are domestic violence issues in the case and promts them to send out a notice concerning domestic violence counseling and a request to obtain support services for the children.

-- Automatic Temporary Injunction: When you file for divorce in Colorado an Automatic Temporary Injunction goes into effect as soon as the opposing party is served. Under this injuction both parties are enjoined from molesting or disturbing the peace of the other party. The police are required to use every reasonable means to enforce this part of the injunction. So, if you have a pending divorce action and your spouse is "disturbing your peace" you can call the police and they will have to enforce the injuction. Just make sure that you have a copy of your Petition for Dissolution of Marriage with you. Disturbing the peace is a lower bar than domestic violence.

-- Temporary Orders: Temporary Orders Hearings occur when the parties cannot agree on how to handle financial and child related matters during the pendency of the divorce. These hearings usually occur within three or so months from the date of the Petition for Dissolution being filed. At this Hearing the Court can specifically order that one party not disturb the peace of the other party or of any child. The Court can order that one party be exluded from the family home or home of the other party upon a showing that physical or emotional harm would otherwise result. The Court may order a Temporary or Permanent Protection Order. Other issues are also addressed such as who will pay what bills and temporary child support and/or maintenance can be ordered.

-- Permanent Orders: This is the final Hearing before the Court if the parties cannot come to an agreement. At this hearing parenting time and decision making regarding the child will be decided. The Courts in Colorado recognize the damage to children that domestic violence causes. They also must weigh the fact that it tends to be in the best interest of children to have contact with both parents. The Court does have the discresion to not order any parenting time with a parent if, after a hearing, the court finds that the parenting time would endanger the child's health or significantly impair the child's emotional development. The Court is required, however to look first for the least detrimental alternative to ending all contact beween a parent and a child. As for decision making, if there has been domestic violence, the presumption is that the parents cannot make decisions together and sole decision making will be seriously considered in most cases. The Court will also refrain from ordering mediation between the parties if there has been evidence of domestic violence.

Irrevocable Family Trusts in Divorce: Some general information on a complex area of the law

2009-12-07T15:23:00.000-08:00

Get Expert Adivse
My advise on dealing with irrevocable trusts in Divorce litigation is to make sure you have good experts involved both on the issue of "Characterization of the Interest" as well as the "Valuation of the Interest".

Every Trust is different and the provisions of the trust must be fully evaluated to determine if the party's interest in the trust will be considered property by the court in a divorce action.

Remainder Interest
Generally speaking, the Court will look at the level of control that the party has over the trust and if they have a "remainder interest". A remainder interest means that it is a certainty in the trust instrument that the benificiary will recieve the property contained in the trust, at some point (unless they do not live long enough to get it). For instance, some trusts are set up so that at a certain age, the party will get the funds (ie; have full control over the funds). This is considered a remainder interest. Even though the party has no control today, they do have a "vested interest" in the funds. Generally this will be considered to be the party's separate property. Once this is determined, any increase in value in the trust during the marriage will be considered marital property even though the party has had no access to the trust assets during the marriage.

Discretionary Power placed with the Trustee
The other issue to look at is the party's power and control over the trust assets. Generally speaking, the more the trust is set up as "discretionary" in the trustee, the less likely it is going to be held as property of the beneficiary. In other words, if the party in the divorce has little or nothing to say about what he or she is going to get and when, that party does not have control over the property and therefore the court would not hold the trust to be his or her property.

An interesting circumstance may be that the party has access to the income from the trust and uses that income to live an extravagant lifestyle but has no control or say over the corpus of the trust. The court could find that there is no property interest. The only avenue that the spouse has in this case is to make a case for maintenance. The spouse would have no claim against the property of the Trust itself as part of the division of the marital estate.

I want to emphasise again that this blog entry is to give you a general idea about how the courts veiw trust instruments in terms of determining if they are property in a divorce case. In any particular case you need to individually review the trust with experts and a good divorce attorney to see how a court might view the trust under the facts and circumstances of your case.

Why having a coach or therapist can actually save you time and money during your divorce

2009-11-16T14:55:00.000-08:00

When people go through a divorce, especially when there are children involved, there is almost always a strong emotional component. How could there not be. Research shows that divorce is right up there with a death in the immediate family as one of life's most stressful times.

The legal process in Colorado is set up to deal with two major issues. The splitting up of the marital estate and financial support as needed on the marital side and doing what is in the best interests of the children when dealing with parental responsibilities. The court system is actually set up to avoid emotional issues between husband and wife. This is a no fault divorce state and the only wrongdoing that is considered by the court is financial wrongdoing or endangerment due to domestic or child related violence or endangerment to the childs emotional development.

When you are going through the divorce process there is quite a bit of work to do to gather all of the financial information needed and to make decisions on what you are asking for in terms of division of property and debts, maintenance if warrented, child support and parenting time. It is easy for emotional issues, though completely normal, to get in the way of clear and wise decision making in a divorce case.

In most cases, your attorney is not the best resource equipped to deal with the emotional blocks that might arise for people during the process. Some people just need to talk it through. You can do this with your attorney but for a much larger fee than a divorce coach or therapist and perhaps with not as much expertise. Some people find it very hard to get the financial information together. Often times there is an emotional block at play that shows up as procrastination but the attorney ends up spending time working through the issue with the client.

We have found that even in the most emotionally difficult divorce situations that the addition of a coach or therapist to collaborate with can make all the difference in decreasing legal fees and making good and clear decisions in the divorce process.

Our firm uses a form that allows the coach/therapist to collborate with the attorney without loosing attorney/client privilege or therapist/client privilidge. The collaboration usually goes no further than letting the coach know what is coming up during the divorce process and what some of the emotional blocks might be to making good decisions. The coach/therapist is then left to decide the best course of action to support our mutual client in moving past the emotional block and making the best decisions for themselves and their family. With this support most clients are able to use their attorney wisely, spend considerably less on legal fees and end up making good long term decisions.

Maintenance in Colorado (formerly called Alimony): When investing in your divorce makes real sense

2009-11-06T14:24:00.000-08:00

The other day a women called me and wanted to get some advice about how she should proceed with her divorce. She had been married for 20 years during which time she stayed home and raised children while her husband worked full time making around 500,000 dollars a year. She had recently gone back to school, started to work and was making 34,000 a year. They still had two children at home that were teenagers. Her husband wanted to mediate the divorce and wanted to split everything 50/50.

She said that her husband did not want to spend money on the divorce and she felt that she did not want to either. An understandable position. However, there are some cases where it is important to invest in getting to a fair settlement, an equitable settlement. In my opinion the scenario above is one of those cases.

Splitting up a marital estate in Colorado is to be done "equitably" which does not necessarily mean equally. Maintenance is given or not given by the courts based on a "reasonable needs" test. As you can see both of these standards allow for a lot of latitude in a court's decision. What is "equitable" or fair and what is "reasonable" are interpretations of the facts and there are no formulas to follow. If your case did end up in court, you would want a strong advocate to present the facts and your position to the court.

So, before going to a mediation, if that is what the couple chooses to do, the wife needs to spend the time and money to get a good idea of what her position might look like if she were to end up before a court. Then she can go into the mediation fully prepared and educated.

No settlement discussions or mediation should take place before all financial information required under Colorado statutes has been exchanged. Once the petition for divorce is filed there is a 40 day period from the date the other party is served where financial information must be exchanged. Financial Affidavits will have to be filed with the court during this time period. Once the full financial picture is disclosed, you need to sit down with your attorney and decide if there is a need for a financial expert to work with the numbers to come up with an equitable settlement offer. These financial experts are often called Certified Divorce Financial Analysts and their expert testimony is very valuable if you had to go to court. You may also need to have an expert hired to assess the value of a business or do some other form of investigative accounting. This type of pre work will allow you to enter into negotiations or mediation with full disclosure and the information you need to come to an equitable settlement.

Working with your attorney and a Certified Divorce Financial Analyst or other expert may look like you are spending quite a bit of money up front, but it can be a very worthwhile investment in the long run if you can come to an informed and equitable settlement rather than going into negotiations less prepared.

This is not true in every case, but for those cases where there has been a long term marriage, a large discrepancy in income, significant assets and a spouse who has a substantial income,it can be the one key investment that supports the long term well being of the party earning significantly less or who has no income in the marriage.

If the facts of your case seem to fit with the above example, it is a wise idea to seek legal advise before negotiating any settlement with your spouse.

Modifying Child Custody: The "Endangerment" standard

2009-10-28T09:39:00.000-07:00

Here at Matthews & Matthews we receive a number of calls each month from people who are looking to change parenting time or decision making after final orders have been entered by the Court.

Changing Parenting Time or Decision Making does require returning to Court unless the parents can come to an agreement regarding the change.

Best Interest of the Child Standard
There are two ways a court will look at a request to change parenting arrangements. If the non-residential parent (the parent with the least parenting time) is asking to increase their time with the child the Court will look at the request from the perspective of what is in the "best interest" of the child.

Endangerment Standard
However, if the parent requesting the change is looking to restrict the other parent's time with the child or they are asking to change the residential parent (the parent with the majority of the time), the the Court will use a much higher standard of review. The Court will only agree to the requested change if there is sufficient evidence of endangerment to the child's physical health or emotional development.

If you are dealing with a physical danger like neglect or physical or sexual abuse, the evidence required is clear, however, endangerment to emotional development remains a grey area.

Endangerment to Emotional Development
Cases of endangerment to emotional development tend to require expert testimony. There is a line between bad parenting and "endangerment to emotional development". Expert testimony by a therapist who has evaluated the child will assist the court in determining if that line has been crossed. Factors to consider beyond the evidence supporting the alleged parental behavior include risk and resiliency factors concerning the child.

In a case where endangerment to emotional development is alleged, either parent or the Court may request that a Child and Family Investigator be appointed. However, due to the unclear nature of emotional endangerment, it may be wise to have the child evaluated by a professional with specific expertise in children's emotional issues within the family system like a licenced Marriage and Family Therapist.

Evaluating the child when you have joint decision making
In the case of parents with joint decision making this can be a problem in that the accused parent might not agree to the evaluation of the child. However, there are often provisions in the parenting plan that allows one parent to get medical attention in the case of an emergency without the consent of the other parent. You would have to look at the circumstances of the particular case to determine if the emergency provision would apply to evaluating the child for the purposes of determining endangerment to emotional development. This decision should be discussed with legal counsel before proceeding.

Colorado Case Law on Emotional Endangerment
There are a few Colorado Appellate Court cases that have ruled on what constitutes endangerment to emotional development. The facts of every case are different but the following situations provide some guidance on what a Court will consider endangerment to emotional development:

1. Parental Alienation when well documented with expert testimony.
2. Father's reluctance to recognize child's problems and inability to work with mother in addressing those problems.
3. Where record revealed abundant evidence that children feared mother's new husband would sexually molest them.
4. Religious beliefs when the evidence showed such beliefs or practices were reasonably likely to cause present or future harm to physical or mental development of the child.

Custody Protection for Military Reservists

2009-10-14T13:05:00.000-07:00

Currently in Colorado we have many parents that are in the military reserves. Unlike the regular military, these parents may or may not be called into active service and if they are, the service will be temporary and any orders for deployment will be considered interim.

So, lets say that Sally is the the Army Reserves and she has the majority of parenting time for her three year old son. Sally is called up for active duty and sent to Afghanistan under a one year interim order. Sally then asks her ex-husband Joe if he will take care of their son while she is away and Joe agrees.

When Sally returns at the end of her tour of duty (all in one piece; thank god), she is expecting to get her son back but Joe has decided to bring a motion to modify parenting time stating that his son has been voluntarily integrated into his household over the past year and it is in the childs best interests to stay with him. He is asking to now be the parent with the majority of the parenting time (residential parent).

Normally speaking, if Sally had voluntarily given all parenting time of her three year old son to her ex-husband Joe for one year, he would have a right under CRS 14-10-129 to ask for a modification of parenting time. However, under a recently legislated statute; CRS 14.10-131.3 Sally now has special protection as a military reservist.

CRS 14.10-131.3 Protection for Military Reserve Parents went into effect on August 5th, 2008. Here is the relevant information:

1. You must be a member of the Military Reserves (not the regular military)
2. An agreement to temporary modification of parenting time while deployed does NOT constitute consent to integration of the child into the household of the other parent for purposes of a motion to modify primary residential parent or decision making.
3. Even if there is an interim court order for modification of parenting time during the reservist's absence, that order will be automatically vacated and the original parenting plan put back in place upon the reservists return.
4. This statute doe not prevent orders for modification based on reasons other than deployment.

So, in Sally's case. The Court would reference CRS 14.10-131.3 and deny the motion to modify parenting time because it was soley based on Sally's deployment to Afghanistan. Now that she is back, the original parenting plan goes back into effect.

When your home is Separate Property: Pitfalls during marriage and divorce

2009-10-09T10:29:00.000-07:00

So, you bought your home before you got married. Only your name is on the title and only your name is on the mortgage. Well then it is your separate property right...even though you are now married right... IF you want to sell the property you can and the proceeds would be your separate property right?...

Well, these questions do not lend themselves to yes/no answers. Lets examine a few possible scenarios and how the law would treat your separate property home.

Marital Interest in Separate Property:
The day you got married your spouse began to acquire a "Marital Interest" in your separately owned home. This interest is equal in value to the increase in value of the home during the marriage. So your spouse does have an interest in your separately owned home if the market value has increased during the marriage.

Commingling of Separate Funds with a Marital Asset:
Lets say that you sell your home that you owed separately and you and your new spouse purchase a home together. You take the money that you earned through the sale of your house and put it in as a down payment on the new marital home that you own together with your spouse. That money was your separate money but you have now commingled it with your new marital home. The law would presume this money was a gift to the marriage and the new home is marital property to be divided if you were to get a divorce. You might be able, during a divorce, to bring sufficient evidence that this was not meant to be a gift to the marriage and if the money is traceable, you might be able to overcome the presumption that the money was a gift to the marriage.

Keeping your Separate Property Separate:
If you sell a home that is your separate property during your marriage (or any separate property for that matter) you can keep that property separate by putting the proceeds into a separate account with only your name on it. You can invest that money in a separate account. The only part that would become marital is the increase in value of money or investment during the marriage. You could also buy another house in your name only with those proceeds and it would remain separate property.

Selling your Separate Property Home during your Divorce:
If you are in the process of getting divorced you might not be able to sell your separate property home without the consent of your spouse because there is an automatic injunction during a Colorado divorce against disposing of marital property. If there has been an increase in value in your home during the marriage, then your spouse has a marital interest and you cannot sell during the divorce process without their consent.

New Practices in Colorado Family Law: Early Neutral Evaluations

2009-10-02T15:49:00.000-07:00

Early Neutral Evaluations have been part of Colorado law for some time as part of the Colorado Dispute Resolution Act 13-22-302 (2), however the Early Neutral Evaluation practice has only recently been adapted to family law cases and specifically to child custody cases.

Question:
How are Early Neutral Evaluations(ENE's) used in Child Custody matters?

Answer:
The ENE model works as follows: Early in the divorce process the parties meet with a team of two evaluators, one man and one woman, usually one is an attorney and the other a therapist. Both evaluators should have significant experience with child custody matters. The evaluators set up a three hour session where they meet with each party to hear their position and the concerns relating to parenting time and decision making that are causing conflict between them. Each side also shares their feelings and frustrations. After a few rounds back and forth with requests for more information and an opportunity for each party to address the concerns of the other, the evaluators then give their expert assessment of the case. The parties are provided feedback about the circumstances of the case and what would be a likely outcome if the case were to be subjected to a full, court ordered parenting evaluation. The ENE evaluation team will then make settlement suggestions and assist in mediating a settlement if needed.

The purpose of Early Neutral Evaluations is to help parties reach an early settlement of their divorce or separation that satisfies both of their interests and benefits the children.

The Pro's:
If an ENE evaluation assists in coming to a settlement early in a child custody dispute, it can prevent a long and expensive custody fight between the parties and can allow for a much stronger foundation for a workable post divorce family. ENE's, like mediation, are confidential in that the evaluator cannot be called to court to testify. ENE's are specifically designed to allow for early settlements of disputes rather than serve as evidence gathering devices for trial. This way the parties have the freedom to communicate openly without concern of how it would show up later at trial. This makes authentic communication more likely and settlement more probable.

The State of Minnesota has been using ENE's in custody disputes for quite some time. One Minnasota divorce attorney, Gerald Williams, shares the following insight on his blog Minnesota Divorce and Family Law Blog; "ENE is an informal process, in which the parents are not "testifying" and are not under oath. So the evaluators' observations are only as good as the facts they get from the parents. In most cases, the evaluators get an accurate enough understanding of the circumstances to make helpful observations and recommendations. The process bears out the fact that many, full blown custody evaluations reach the same conclusions that ENE evaluators reach during the three-hour session."

The Con's:
There have been some concerns expressed by the Colorado Psychological Association about the ability of the therapist involved in a ENE to gather sufficient data in the 3 hour session to give a valid opinion on child custody. Also, the parties are not under oath and there is no way to judge the veracity of what they are saying. See Ethical Considerations for Psychologists Involved in Early Neutral Assessments by Andrew Loizeaux, Psy.D. and Julie Van Heyningen, Psy.D.

There are two other forms of custody evaluations that are used by the court system to assist the judge in making child custody decisions. In both cases the evaluator speaks to the parties but also may speak to the children, other interested parties and therapists that have worked with the children and with the parents. So their reports are usually based on much larger quantities and perhaps more objective data. This type of reporting is done by Child and Family Investigators (CFI's) or Therapists doing court ordered Parental Evaluations. Parental Evaluations may also include data obtained through psycological testing. These reports are used by the court as evidence and the evaluators can be called to testify.

Conclusions:
ENE's are a great option if they assist in an early resolution to custody disputes but it is very important to understand their limitations. There is only so much evaluation that can occur in a three hour session where the evaluators are only talking to the parties and the parties are not under oath. However, much like mediation, perhaps what is really important is that the people with the custody dispute find common ground and that may ultimately outweigh the need for the full fledged evaluation that occurs through the court later on in the divorce case. After all, it is all about the future of how the family works together and if you can prevent the sometimes permanent fissures in relationship that can occur in a protracted custody fight, perhaps you have done what is best for the family as a whole.

New WEBINAR: Getting Divorced in Colorado; What to expect and how to prepare

2009-09-21T16:35:00.000-07:00

Matthews & Matthews PC will be starting a series of Webinars this October for people who are thinking about getting divorced and want to understand how the process works, the key issues that must be addressed and how to prepare themselves before filing any paperwork.

Webinar Host:
Leslie Matthews J.D., Managing Partner, Matthews & Matthews PC

Upcoming Dates:
Wednesday, October 21st from 12:00pm to 1:30pm
Thursday, October 29th from 12:00pm to 1:30pm

Registration:
There will be no fee for our October Webinars. To register, go to www.matthewslaw.com and register on line or call or email Sandy at 303-329-3802 or sandy@matthewslaw.com. Sandy will need your name, address, phone and email. All information will be kept confidential. Sandy will then set you up to be able to log into the Webinar at the appointed day and time.

Course Information:
-- You will learn what you need to know to make a wise decision about divorce from the privacy of your own computer screen.
-- Complete confidentiality
-- Seminar is designed to be done over an extended lunch hour

As a family law attorney, I have seen the divorce process upset too many unsuspecting clients because they had not had the opportunity to think it through or prepare for it ahead of time. Attorneys bring important legal expertise; however, they may not always view the steps of the divorce process through the same lens as a client. What may seem normal and matter-of-fact to an attorney, might seem surprising or overwhelming to a client. That is the reason I have designed this program from the perspective of the person going through the divorce process.

To read more about the Getting Divorced in Colorado WEBINAR go to our website at www.matthewslaw.com and click on resources and then on seminars.

Court's Special Role in Child Custody Cases

2009-09-02T14:38:00.000-07:00

In the majority of civil law suits in Colorado, the Court's role is to make sure that the law is followed during the law suit and in the determination of the verdict. A jury is typically the finder of fact and the Court remains neutral in terms of the interests of the parties.

In Child Custody cases, however, the Court has an additional role. There are no jury trials in family law cases and therefore the Judge is the finder of fact as well as the law. Moreover, the judge is expected to determine for him or herself what result he or she believes is in the best interests of the child or children in any particular case.

This is more than the usual fact finding role of the judge in a civil, non-jury trial. The judge must do more than determine what facts are true and what remedy is fair as between the two opposing parties. In Family Law, the judge is bound by law to consider the best interests of the children, who are not parties to the custody case. The best interests of the parents are not at issue, although their constitutional rights or vested parental rights will weigh in. The focus is mainly on the children and the judge must do his or her best to rule in a way that supports the children's best interests even if it does not correspond or seem fair visa vie the interests of the parents.

You could say that the judge is bound to an advocacy role for the interests of the children in the case. This is one of the reasons that judges rely so heavily on experts such as Child and Family investigators (see former blog entry), Parental Evaluators and other expert witnesses. It is a heavy burden to make permanent decisions about who will be the primary parent, who will have what parenting time and decision making responsibilities. These decisions deeply affect children's lives. Children that are innocent bystanders to the break up of their parent's relationship and Colorado judges are bound to do their best to assist in creating the best environment for those children under the circumstances.

Colorado law does give judges some assistance in what factors they should consider in determining what parenting plan will be in the best interests of the children involved. Here are the factors the Court is asked to consider:

1. Wishes of the child's parents.
2. Wishes of the child if they are sufficiently mature to express reasoned and independent preferences as to the parenting time schedule.
3. The relationship of the child with siblings, parents and any other significant person.
4. The child's adjustment to home, school and community.
5. The mental and physical health of all individuals involved. (Although disability alone cannot be the basis to deny or restrict parenting time).
6. The ability of the party to encourage love, affection and contact with the other party.
7. Past relationship of the parties to the child visa vie a system of values, time commitment and support.
8. The physical proximity of the parties as it relates to the practicality of visitation.
9. Any history of child abuse and neglect (credible evidence only).
10. Ability of the parties to place the needs of the child above their own.

The Court is also charged to consider all other relevant factors as well as those listed above in their determination of a parenting plan that is in the best interests of the children.

Relocating After Your Divorce is Final: Court considers an additional 9 factors

2009-08-27T11:22:00.000-07:00

Once your divorce is final, parental rights have been established by Court Order for both parents. If later on, one parent decides to relocate, there will have to be a change in parenting time and possibly decision making thereby affecting parental rights. The Colorado Courts consider these vested parental rights along with the best interests of the child in determining how the impending relocation of one parent will effect the child's living arrangements and the parenting time of both parents.

Scenario One: The primary parent (the parent with the majority of the parenting time) is moving to another state.

Normally if you wanted to change the primary parent you would have to prove a physical danger to the child or danger to the child's emotional development. However, the one exception is during a relocation. Although it is the primary parent that is relocating, it is not a given that the child's primary residence will remain with that parent. The court will look at the situation using a best interest of the child standard to decide if the child's main residence should remain with the parent that is moving or if primary residence should switch to the parent who is remaining in the state of Colorado. The Court will re-look at the same factors they used in originally deciding parenting time and they will also look at an additional 9 factors in making their decision. The additional 9 factors are as follows:

1. The reason why the party wishes to relocate with the child;
2. The reason why the opposing party objects to the proposed relocation;
3. The history and quality of each party's relationship with the child since the previous parenting time order;
4. Education opportunities for the child at the current and proposed location
5. The presence or absence of extended family at each location;
6. Whether a party as been a perpetrator of child abuse, when such abuse occurred and other factors surrounding the abuse;
7. The advantage of the child's remaining with the primary caregiver;
7. Impact of the move on the child;
8. If a reasonable parenting time schedule can be fashioned;

It is important to note that Colorado case law has established that there is no presumption in favor of the primary parent. Both parents have an equal burden to prove what is in the best interests of the child in a relocation proceeding.

Scenario Two: The parties have equal parenting time and one party is moving out of state

In the case of joint parenting the standard remains the same. The Court will look at what is in the best interests of the child using the same factors as stated above. The only difference is that if both parties have equal parenting time the stability of the child could weigh equally between parents and the question of best interests might weigh towards staying with the parent in Colorado more frequently. However, the evidence is unique to each case and I would not venture to say how a Court might rule without knowing the specific circumstances of any one case.

Scenario Three: The Non-Primary Parent is leaving the state

If the parent leaving the state has less parenting time than the parent remaining in the state then the primary parent would remain the same and the child's primary residence would remain in Colorado. The only change the Court would be looking at would be a change to the parenting plan to account for the geographic distance between the parties.

Typically, the Colorado Court will not consider a change to parenting time within the two years following a change. This rule does not apply to relocation. The Court will consider a relocation at any time and it will be given priority on the Court's docket.

Grandparent's Rights in Colorado

2009-08-18T10:00:00.000-07:00

Grandparent's Visitation Rights

Individuals may wonder if grandparents have the right to ask the court for visitation rights with their grandchildren. In Colorado, grandparents do have the right to ask for visitation rights under certain conditions.

A grandparent can seek a court order, in the county where the child resides, granting the Grandparent reasonable visitation with their grandchild if:

--There has been a child custody case

--There has been a case involving the allocation of parental responsibilities

--If the marriage of the parents has been held to be invalid or dissolved or there has been a legal separation.

--If the child has been placed outside of the home and is not living with the parent (unless legally adopted)

--If the parent of the grandchild has died and that person is your son or daughter.

The Court will look to “the best interests of the child” to determine if grandparent visitation is appropriate. The grandparent has the burden to prove by “clear and convincing evidence” that the parent who wants to deny visitation is not acting in the best interest of the child and that visitation would, in fact, be in the best interest of the child.

Enforcement of Grandparent Visitation Rights

If you have been granted grandparent visitation by the Court and the parent with legal custody or parental responsibilities is not complying with the Order, you may bring a motion to the Court to have your visitation enforced. The Court has broad powers to enforce visitation given the circumstances of your particular case. The court may order mediation or a full hearing and has the power to bring sanctions or even require jail time if the Order is not complied with.

Seeking Custody of a Grandchild

In order for a Grandparent to gain legal custody of their grandchild the parental rights of the parents must either be terminated under Colorado’s Dependency and Neglect Statutes or voluntarily relinquished under Colorado’s Children’s Code or the parents must have both died.

In all of these cases you would have to be part of the proceedings to terminate or relinquish parental rights and there would most probably be one or more hearings before the Court. We are happy to go over the required actions with you given the circumstances of your case.

The one exception to this is if the child has been living with the Grandparents for at least 6 months. If the Grandparents have had parental control of the child for that time period then they can enter a claim for parental rights. The standard will be what is in the best interest of the child in terms of who should have legal custody.

If you have a question regarding your legal rights as a grandparent, please feel free to give us a call to discuss your specific circumstances and how the law might apply to your situation.

So the Court has Ordered a CFI (Child and Family Investigator) in Your Child Custody Matter: What do you need to know?

2009-07-31T13:27:00.000-07:00

A Child and Family Investigator (CFI) can be one of the most important people in a child custody matter before a Colorado Court. The report submitted by the CFI is often relied on heavily by the Judge who is looking for an objective source of information about child custody issues.

The rules that must be followed by a CFI are found in Colorado Civil Statutes, Section 14-10-116.5 and are supplemented by the Chief Justice Directives that have been established for CFI's. Some of the pertinent rules to understand in dealing with a CFI are as follows:

1. A CFI can be appointed by a Motion of one of the parties to the custody matter or the Court can appoint a CFI on it's own motion.

2. There must be a written order by the Court appointing a CFI and setting forth the specific duties of that CFI. In setting forth these duties, the Court should provide for the least intrusive means of ascertaining the child's best interests.

3. The CFI must investigate, report and make recommendations in a written report to the Court. The CFI must be careful to assure both fairness and the appearance of fairness, allowing the parties relatively equal and comparable opportunities to present their perspectives. The CFI report is given to both parties and to the Court but the report is maintained under seal and is not a public record.

4. Who may the CFI speak with to investigate what parenting plan may be in the child's best interests? : The CFI may speak with the child's parents or any other person with relevant information including other family members, teachers or other caregivers. The Chief Justice directives include a standard Court Order that states, in part, under Responsibilities of the Parties, "The Parties shall sign any releases necessary to allow the CFI to properly conduct his/her investigation" This refers to medical personnel and therapists specifically. Therapists would normally not be able to talk to a CFI due to Therapist/client privilege. The Chief Justice Directives make it clear that they expect the parents to waive their privilege in writing so that their personal therapists or the child's therapist can speak to the CFI. The CFI can also speak to the child at issue in the custody case and can consider the wishes of the child but need not adopt such wishes in making recommendations. However, in their report, the CFI must outline the child's wishes as expressed.

5. The CFI's file is to be made available to to each party through their counsel after the CFI report has been filed. The CFI file must include the names and addresses of all persons with whom the CFI consulted unless the disclosure would endanger any person's welfare.

6. The CFI can be called as a witness at a custody hearing and can be subject to cross examination. Anyone the CFI has spoken with can also be called as a witness and cross examined although this does not happen frequently.

I cannot over emphasise how important the CFI is to the ultimate determination of parental rights and responsibilities in a custody matter. Suggesting a good CFI for your case is part of what an attorney should bring to the table as a valuable part of your representation. Given the weight of the CFI's opinion in the case it is important for everyone to cooperate and work effectively with the CFI including the client and all other possible people the CFI should be speaking with. The Attorney should be working directly with their client to assure that the CFI is informed of all relevant people and professionals to speak with and to assure that the CFI is following the Court Order and all Chief Justice Directives.

You want to Modify Parenting Time but you have moved to a new State: Where can you file?

2009-07-23T10:30:00.000-07:00

Lets say that you are divorced in one state and all issues regarding parental responsibilities (custody) have been adjudicated. You have been determined to be the primary parent and the Court is aware of your intention to move out of state with your child following the final divorce decree. You then move to Colorado.

Two years later you believe there is a need to alter the present parenting time arrangement. Can you file for a Modification of Parenting Time here in Colorado where you now reside or do you need to file back in the state where the original orders were issued along with your divorce decree?

The question is: Which state has jurisdiction to modify the original parenting plan? The state that issued the original orders or the state where you and your child currently reside?

The answer is: It Depends on a few factors

1. First, does the other parent still live in the original state? If the child, the child's parents or any person acting as a parent no longer reside in the original state, then that state no longer has jurisdiction. So, if both parents and the child have moved out of the original state, you could file for Modification in Colorado because you and the child have resided in Colorado for over 6 months and Colorado would have jurisdiction.

2. What if the other parent still lives in the original state? Then the question becomes more complex. The original state will retain jurisdiction if one of the parents still resides there AND there is a "significant connection" with the state AND "substantial evidence is available in the state concerning the child's care, protection, training and personal relationships".

3. What this means is that you will have to file your Motion for Modification back in the original state where you got your divorce OR you will have to file a Motion asking the original state to find a lack of exclusive and continuing Jurisdiction. Under Colorado law, if one of the parents still lives in the original state, that state has to determine that jurisdiction no longer exists before Colorado will take the case. So, in either event you will have to hire an attorney back in the original state to deal with this if one parent still resides in the original state.

4. The Court in the original state will have to determine if there is a significant connection with the state in order to maintain it's jurisdiction. It may be enough that the parent who still lives in the original state has significant visitation with the child in that state. Colorado law states that if the relationship between the child and the person remaining in the original state becomes so attenuated that the Court could no longer find significant connections and substantial evidence, then jurisdiction would no longer exist. You could certainly make this argument if the child was not spending any time in the original state. Upon this finding, the Court in the original state would hold that they no longer had jurisdiction and Colorado could then take your Motion to Modify Parenting Time.

5. So, the bottom line is that if one of the parents still lives in the original state, you are going to have to deal with the court system of that state before you are able to bring a modification action in Colorado.

Protection Orders During Your Divorce: What standard of proof do you need?

2009-07-16T14:01:00.000-07:00

Although you can get a Temporary Protection Order at any time by going to your County Court, if you are anticipating a divorce or a Petition has already been filed in your Divorce, you are better off applying for a Protection Order in the District Court where you have filed for Divorce. Why? Because the facts that support your need for a Protection Order are fadcts that you would want in front of your divorce judge for a number of reasons, especially if you have custody issues in your case and the "imminent danger" has an affect on the children.

When you apply for a Temporary Protection Order, the same standards apply regardless of what court you are in front of (County Court or District Court where you filed for divorce). The standard of proof for entering a Temporary Protection Order is a finding of imminent danger to the Petitioner. When you file for a Temporary Protection Order, the other party is not present, therefore, you alone are presenting evidence but the facts must present as imminent danger. The imminent danger must relate to the following:

Assaults and threatened bodily harm
Domestic Abuse (acts or threats of violence) or
Stalking

When the Court issues the Temporary Protection Order it also automatically sets a Show Cause Hearing so that the other party may show cause for why the Temporary Protection Order should not be made permanent. (burden is on the respondent) This hearing must be held in the next 14 days.

Normally a Show Cause Hearing is heard and the party whom the Protection Order has been issued against has an opportunity to defend themselves against the allegations that lead to the Temporary Protection Order. However, in a divorce action, if both parties agree, the Temporary Protection Order can be extended until the divorce case is complete and the decision to make the Temporary Protection Order permanent can be made by the judge as part of the final orders in the divorce case.

Extending a Temporary Restraining Order during the Divorce may be in the best interests of both parties for the following reasons:

The heated emotions of the moment may be significantly resolved by the end of the case.
Permanent Protection Orders are severe. They cannot be modified or removed for 4 years.
There is a different, lower standard for a Permanent Protection Order (see below) but, at a Show Cause Hearing the person who has the Temporary Protection Order against them has a chance to refute the petitioners claims.

Bottom line is that if Petitioner loses at the Show Cause Hearing they end up with no protection order at all and alternatively, if the Respondent loses, they end up with a minimum of a 4 year, non modifiable Permanent Protection Order to deal with. So there is risk on both sides. If you keep the Temporary Protection Order in place, there is time for the circumstances to resolve themselves without the 4 year punitive nature of the Permanent Order and without the chance of going unprotected during the pendency of the divorce.

It is important to note that if the Permanent Protection Order is granted, the party whom the Order is against cannot carry a gun legally during the time the Order is in place. This can be a career changing event for a police officer or other person who's job requires them to carry a gun.

If both parties do not agree to extend the Temporary Protection Order, then the Show Cause Hearing will be held and the Judge will have to decide if a permanent Protection Order is warranted. There is no requirement for imminent danger as before. Instead, the standard for granting a Permanent Protection Order is a finding that the incident of assault, threat of bodily harm act of domestic abuse or stalking "actually occurred" and that these acts are "reasonably likely" to reoccur.

Here is the strategic question for the client and their attorney: Given the standard for Permanent Protection Orders, should you insist on a Show Cause Hearing or agree to extend the Temporary Protection Order until the end of the Divorce Action. The answer to this question depends on all the facts in the case as well as the known propensities of the Judge and needs to be dealt with on a case by case basis.

Child Support Calcualations: Will overtime pay be included in your gross income?

2009-07-06T11:32:00.000-07:00

Here in Colorado, Child Support Payments are calculated using a formula. The Formula includes the number of overnights you have with your child, your gross income and an expense calculation for the child's needs.

Gross income is an important piece of the formula and you want to make sure that it is calculated correctly. So, the question arises...what about overtime pay? Is it part of the calculation for gross income?

First lets talk about what gross income includes. It includes income from any source including the following:

Wages, Salary and Tips
Commissions
Independent Contractor payments
bonuses
dividends
severance pay
pensions and retirement benefits
royalties, rents, interest
trust income
annuities
capital gains
social security benefits
worker's compensation benefits
unemployment insurance benefits
disability insurance benefits, or health insurance benefits to the extent that they replace wages or provides income in lieu of wages
monetary gifts or prizes
distributions from partnerships, limited partnerships or closely held corporations or LLC's
alimony or maintenance received

As you can see, gross income is almost any form of income that you can imagine receiving. However, when it comes to overtime pay there is an exception.

If overtime is REQUIRED by your employer IT IS CONSIDERED INCOME. However, if you work overtime by choice (meaning more than 40 hours or more than what would otherwise be considered to be full-time employment) then the overtime pay you receive IS NOT CONSIDERED part of your GROSS INCOME for the purposes of calculating child support. If you work additional jobs over and above full time employment that income is also NOT CONSIDERED part of your GROSS INCOME.

The exception to this rule is for people that are self employed. If you are employed by a closely-held corporation of which you are an owner and overtime is necesitated by the responisbilities of your position, your overtime will be held as required and will be considered as part of your GROSS INCOME. In the case of "In re Marriage of Rice, 987 P.2d 947, 948 Col. App. 1999", the Appelete Court based its holding on findings that the father was his own boss and had no supervisor to command him to work overtime, the father was not able to perform his job duties unless he worked overtime, and the father's failure to work overtime would result in penalties to the corporation that would hurt him financially as an owner of the corporation. Id.

Also, monies received as child support payments are not included in gross income.

Milestone Day for Same Sex Couples in Colorado: Designated Beneficiary Agreements

2009-07-02T15:23:00.000-07:00

On July 1, 2009 a law went into effect that allows same sex couples (as well as any other two non-married individuals) to enter into an agreement called a Designated Beneficiary Agreement and file it with their County Clerk and Recorder in the county where they reside.

The law gives same sex couples expanded rights if they file a Designated Beneficiary Agreement. Here are some of the rights that are conferred under the statute:

Right to hospital visitation that is usually reserved for family only.
The right to initiate a formal complaint regarding alleged violations in a nursing home situation.
The right to notice of the withholding or withdrawal of life-sustaining procedures.
The right to challenge the validity of a declaration as to medical or surgical treatment.
The right to act as an agent to make, revoke or object to anatomical gifts.
The right to inherit real or personal property through intestate succession (in the absence of a will)
The right to receive benefits pursuant to the Workers Compensation Act of Colorado.
The right to have standing to sue for wrongful death in the event of the other parties death.
The right to direct the disposition of the other parties last remains.
The right to be recognized as a dependent in a health insurance policy if the employer elects to provide health insurance coverage for designated beneficiaries.
The right to be designated as a beneficiary in a retirement or pension plan, or a life insurance policy or an inter vivos or testamentary trust for the purpose of a non probate transfer on death.

The statute gives the beneficiary a number of rights that used to be reserved for spouses or family members in the past. It is important to note however, that the rights conferred by a Designated Beneficiary Agreement (DBA) can be overturned by a number of other legal documents if the DBA is in conflict with their terms. These legal instruments include, wills, trusts, power of attorney, a medical power of attorney, beneficiary designations in insurance policies, health insurance, retirement or pension plans, POD accounts, a declaration as to medical treatment, a declaration as to disposition of last remains, or a marriage licence. It does not matter when the other legal instrument is executed...it will trump the DBA.

If one person marries the agreement is revoked and if one person dies the agreement is revoked except for the post death pieces of the agreement which will still be enforceable. You can also file a revocation of the DBA at any time with the Clerk and Recorders office in the county where the original DBA was filed.

So, if you are thinking of entering a Designated Beneficiary Agreement it is important to understand 1. How to make sure it is done in way that matches the requirements of the statute, 2. That you execute other legal documents to assure that the rights conferred by the DBA come into legal reality and 3. That you understand the limitations of the statute and the means to reverse the DBA if you change your mind.

I recommend that you meet with a family law attorney or an estate planning attorney to assure that you understand your rights and that you are conforming to the requirements of the statute.

You can get a more in-depth review of the statute, a sample agreement and answers to frequently asked questions by going to www.designatedbenificiaries.com or feel free to call our offices at 303-329-3802.

College Expenses: How are these handled in a divorce?

2009-06-25T13:48:00.000-07:00

For all divorces on or after July 1st, 1997, the Court will not require that the parties pay college expenses. Child support will continue until 19 years of age. At 19 the child is considered emancipated and the party paying child support can petition the court to end child support payments.

However, divorcing parents can agree to pay for college expenses as part of their separation agreement and final decree. Once the Court orders incorporate the agreement for college expenses that agreement becomes a legal judgement and can be enforced as a Court Order. In other words, if the expenses are not paid the party withholding payment can be brought up on contempt of court charges for not doing so. This is a much heavier penalty that just a mere breach of contract. The Court has broad powers to enforce a Court Order.

It is important to note that any agreement for support of the child (including an agreement to pay college expenses) can be modified by the Court. The party agreeing to pay college expenses can later come back to the Court and argue that there has been a substantial and continuing change in circumstances from the time that the agreement was made. If they can prove this to the Court, the Court has the power to adjust the amount of the payment in consideration of the change in circumstances.

For divorces that were final before July 1st, 1997, there may be a Court imposed requirement for parents to pay reasonable college expenses up to the age of 21. However, the Court cannot order that a parent pay more for these educational expenses than he or she would be required to pay for child support. The Court will not require both child support and college expenses. It is only one or the other. The Court Order for payment of reasonable college expenses can be modified the same way child support may be modified; on a showing of substantial and continuing changed circumstances by the party seeking the modification.

In Conclusion, it does not matter whether the requirement to pay college expenses is Court ordered (prior to 1997) or if it is by agreement and incorporated into the divorce decree (after 1997), in both cases the agreement/requirement to pay college expenses can be modified if there is a substantial and continuing change in circumstances of the party seeking the modification. What constitutes a substantial and continuing change is a question of fact to be argued before the court.

Parental Kidnapping: Can you prevent it?

2009-06-23T12:54:00.000-07:00

In 2007 Governor Ritter signed a bill into law entitled the "Uniform Child Abduction Prevention Act". The purpose of the Act is to deter domestic and international child abductions by parents or persons acting on behalf of parents, before during or following divorce.

The UCAPA gives Colorado Courts broad powers to impose abduction prevention measures at any time.

This Act fills a void by identifying circumstances indicating a risk of abduction and providing measures to prevent the abduction of children. The Act can also apply in pre-decree and intrastate cases.

If you have the right to seek a child custody determination then you have the right to ask a Colorado Court for remedies under the UCAPA. The Court can also, on it's own motion during a child custody proceeding, order abduction prevention measures if it feels there is evidence to show a credible risk of abduction.

The following factors are looked at by the Court to determine if there is a credible risk of abduction:

Previous abduction or attempted abduction
Threat of abduction
Has recently engaged in activities that indicate a planned abduction including:

Abandoning employment
Selling a primary residence
Terminating a lease
Closing bank or other financial accounts, liquidating assets, hiding or destroying financial documents
Applying for a passport or Visa for self or family members
Seeking the child's birth certificate or school or medical records
Has engaged in domestic violence, abuse, stalking or child abuse or neglect
Not following child custody determination
Lacks strong familial, financial, emotional, or cultural ties to the state or the US.
Has strong familial, financial ,emotional, or cultural ties to another state or country.
Is likely to take the child to a country that is not part of the Hague Convention and does not provide for the extradition of an abducting parent or for the return of an abducted child, lacks legal mechanisms for immediately and effectively enforcing a return order or poses a risk to the child emotional or physical health.
Is likely to take the child to a country that has practices that would enable the person taking the child to prevent the other parent from contacting the child, restricts the child's ability to leave the country after the child reaches the age of majority due to gender or religion, restricts the parent's ability to travel freely or leave the country due to gender, nationality or religion, is a sponsor of terrorism, does not have a US diplomatic presence or is engaged in a military action or war to which the child could be exposed.
Has had US citizenship denied.
Is undergoing a change in immigration status that would effect the parent's ability to stay in the US.
Has used multiple names in an attempt to mislead or defraud.
Has forged or presented misleading or false evidence on government forms.
Any other conduct the Court feels is relevant to the risk of abduction.

At the hearing the Court will consider any evidence that the respondent believed in good faith that the respondent's conduct was necessary to avoid imminent harm to the child or the respondent.

If the Court finds that there is a credible risk of abduction, it has broad powers to order restrictions to prevent abduction. These include:

Travel restriction outside of a given geographical area.
Requiring a travel itinerary including a list of addresses and telephone numbers where the child can be reached at specified times.
Copies of all travel documents.
A prohibition from removing the child from the state or geographical area, or from school or approaching the child at any location other than a site designated for supervised visitation or parenting time.
A requirement that the Court Order be registered in the state the child will be traveling to before the child can travel with the parent to that state.
Surrendering the child's passport and/or a prohibition from obtaining a new or replacement passport for the child.
Requirement that Court Order detailing passport and travel restrictions for the child be filed with the US State Department Office of Children's Issues and the relevant foreign consulate or embassy.
A limitation on visitation or parenting time or requirements that time be supervised until the Court finds it is no longer necessary.
A requirment that a bond be posted or other security provided to serve as a financial deterrent to abduction.

To prevent imminent abduction of a child the Court may:

Issue a warrant to take physical custody of the child.
Direct the use of law enforcement to take any action reasonably necessary to locate the child, obtain return of the child, or enforce a custody determination under the law of this state or
Grant any other relief allowed under the law of this state other than this article.

As you can see, the Court can do what is necessary to prevent abduction. The court can impose any number of remedies as necessary. Once you get over the credible risk of abduction standard the Court can do what is necessary to protect the child from the abduction.

This Act is a very powerful tool. Consult your attorney as soon as you suspect a possible abduction. Do not wait. A study commissioned by the Office of Juvenile Justice and Delinquency Prevention estimated that 262,100 US children were abducted in 1999; 78% of them were abducted by a parent or family member and approximately 1000 abductions were international.

Relocating with your child directly following the divorce: Will the Court allow it?

2009-06-19T15:42:00.000-07:00

I get many questions from people who want to immediately relocate when their divorce is final. People are afraid that they may have to give up their hopes of being the parent with the majority of the time if they choose to relocate.

As it turns out there is a different standard for a relocation when it is done as part of the divorce process than there is if you are going back to court after a divorce to get permission to relocate.

There are 11 factors that the Court looks at to determine what is in the best interest of the child regarding parenting time. One of those factors is " The physical proximity of the parties to each other as this relates to the practical considerations of parenting time".

In 2005 the Colorado Supreme Court ruled on this issue in the case of Spahmer v. Gullette, 113 P.3d 158 (Colo. 2005). The Court found that the trial court must start from the reality that the parents are going to live in different states if that is what is presented in the pleadings. Then they must fashion a parenting plan that takes the different locations as a given in determining a parenting plan that is in the best interest of the child.

So the answer is that you can choose to move to another state as part of your divorce process. Given that decision, the Court will look at what is in the best interests of the child in determining parenting time. All of the other normal parenting time factors will then come into play but the proximity issue will be a given. In other words, the parent who normally would have the majority of the parenting time will not be penalized for choosing to move out of state. Both parents will start on equal ground with respect to determining parental responsibilities. See Spahmer at 163.

If you go back to court to modify parenting time due to a request for relocation the Court will apply a more difficult standard. The statute on relocation lists an additional 9 factors that must be looked at beyond the 11 factors dictated by the parenting time statute. The relocation statute prohibits majority time parents from modifying the prior parenting time order unless certain conditions are met. The statute then lists the additional 9 factors the court must consider in hearing a post divorce relocation request. The reason for the higher standard is that now, post divorce, the parents are not on equal ground with respect to parental responsibility, one has already been named the majority time parent and a court has already rendered judgment as to issues such as parenting time and decision making. So each parent has vested rights and the relocation standard is designed to protect those vested rights. See Spahmer at 163.

The moral of the story: You are better off deciding to leave the state during your divorce process and having that decision be part of your divorce proceeding than waiting and requesting relocation after your divorce process is complete.

Modifying Parenting Time: What standard does the Court use?

2009-06-15T12:13:00.000-07:00

Question: What if you have Court Orders that give you a certain amount of parenting time but now circumstances have changed in your life and/or your child's life and you feel that it is appropriate to increase the amount of parenting time you currently have. Can you go back to Court to increase your parenting time?

Answer: Yes. In Colorado you can bring a motion with the Court to modify parenting time. The general rule is that the Court will apply the "best interests of the child" standard in making a decision to modify parenting time. In other words, you, as the parent requesting modification have to show that it is in the best interests of your child to spend more time with you. This standard can be met with positive evidence of how the child will benefit from spending more time with you.

Contingency: A problem arises if a case can be made by the other side that what you are really looking to do is restrict their parenting time. If a motion to modify parenting time is asking for a restriction of the other parent's parenting time then the standard the Court uses changes significantly. When looking to restrict the other parties parenting time, the Court will use an "endangerment" standard. They will consider the motion to see if there is evidence that the environment the child is in with the opposing party poses a danger to the child's physical health or significantly impairs their emotional development. This is a much higher standard and requires negative evidence about the opposing party to meet the standard of review.

Resolution: So how does the Court decide which standard to use? One side could always claim that a request for more parenting time by one party is really an attempt to restrict the opposing party's parenting time. When a Colorado Court is determining whether to apply the "child's best interest" standard or the "endangerment" standard it inquires into both the quantitative and the qualitative aspects of the proposed change to parenting time, as well as the reason or reasons advanced for the change. In re West, 94, P.3d 1248 (Colo. App. 2004). In other words, the Court will look at all the facts and circumstances as well as the motion itself to determine if the motion is authentically a request for more parenting time for the child's best interests or if the request is really an attempt to restrict the opposing party's parenting time.

If the parent is authentically trying to increase their time with the child, the Court will not apply the difficult to prove "endangerment" standard because legislative policy supports ongoing interaction with both parents and the "endangerment" standard would defeat this policy. In re Adamson, 626 P.2d 739 (Colo. App. 1981).

So, if you want to increase your parenting time, it is important to bring a motion to modify that supports all of the positive reasons why it is best for your child to spend more time with you and why that is now possible.

Important to Note: The less onerous "best interest of the child" standard only applies if you are not changing who the child spends the majority of the the time with. If the motion to modify would mean changing the primary residence then the standard would rise to the level of "endangerment" unless the parties agree to the modification or the child has been integrated into the family of the moving party with the consent of the other party.

Stock Options and Divorce: if a stock option is given for work prior to marriage, is it separate property?

2009-06-09T09:40:00.000-07:00

In a recent Colorado Court of Appeals case, a husband appealed the finding by the divorce court that some of the stock options earned by his wife were earned prior to marriage and were therefore separate property and not subject to division of the marital estate.

The relevant facts in In re the Marriage of Powell, No. 06CA1369 are that the marriage occurred on September 23, 2000 and that the stock options were granted to the wife on February 27th, 2001. The wife argued that the stock options were awarded in 2001 but that these options were for services rendered in 2000 and that the options were earned at the time the services were rendered. The District Court agreed and prorated the options as separate for services rendered before the date of the Marriage.

The Colorado Court of Appeals disagreed. The wife's stock option plan stated that the committee "may" issue the stock options. The Court held that the wife had no enforceable property right at the time the services were rendered because the committee had no obligation to issue a stock option at that time. The Court held that the option was not "earned income" until it was granted on February 27th, 2001. Since the couple was married on that date, the stock options were marital property.

One other finding of the Court of Appeals in this case is of note. The husband was a homemaker inside of this marriage. The value of his contribution to the marital estate as a homemaker was not taken into consideration by the trial court. This decision was upheld because the trial court had weighed the factors dictated by statute. Also, the husband had owned a home before he married but conveyed it into joint tenancy with the wife following the marriage. He argued on appeal that it was inequitable for the trial court to award the wife 60 percent of his premarital home. The Court of Appeals affirmed the lower court in stating that once conveyed, the home was part of the marital estate and subject to equitable distribution as part of the overall estate and that it did not matter that the origin of the home was husband's separate property.

Information for this entry was gathered from 38 Colorado Lawyer, No. 4, pg 140, April 2009.

When can you re-open a finalized divorce?: Misstatements or Omissions that materially affect the division of property

2009-05-26T12:43:00.000-07:00

Q: What happens if you have divorced your spouse and then later find out they did not tell you about certain assets that they owned during your marriage that you were unaware of?

A: If the omitted or misstated information would materially alter the property settlement then you can set aside the final decree and re-open the case for a period of five years from the date of the final decree.

Under the Colorado rules that govern in divorce cases, C.R.C.P. 16.2(e)(10) states that it is the duty of both parties to a divorce case to provide full disclosure of all material assets and liabilities. If the disclosure contains misstatements or omissions that materially affect the division of property then the Court maintains the jurisdiction to reopen the case for five years following the entry of the final decree.

This law went into effect for Domestic Relations Cases filed on or after January 1st, 2005 and for post decree motions filed on or after January 1st, 2005.

The Supreme Court of Colorado ruled in March of 2010, in a consolidated opinion, that in order to benifit from the new five year rule, the lack of disclosure needs to have occured in a case that was filed on or after January 1st, 2005. If your Dissolution of Marriage action was filed prior to January 1st, 2005 then you only had six months to re-open the case for a misstatement or ommision. See Nos 08SC748, 08SC749, 08SC887, In re the Marriage of Schelp; In re the Marriage of Robers and Lipson; In re the Marriage of Barnett, March 22, 2010.

In prior opinions, the Colorado Court of Appeals had allowed a reach-back when a post decree motion that alleged a valuation of an asset was incorrect was filed after January 1st, 2005. The Supreme Court has now ruled that if the misstatement or ommision occured in a Dissolution of Marriage case that was filed prior to January 1st, 2005 then the new 5 year rule will not apply regardless of when the post decree motion pointing out the error was filed.

If your Dissolution of Marriage case was filed on or after January 1st, 2005, both parties had an affirmative duty to disclose all material information and if you find out that the other party did not disclose assets or materially mistated the value of assets, you have five years to re-open your divorce action and re-look at the property settlement in light of the new information.

Getting the Child's Input in a Divorce: Is it a good idea?

2009-05-22T08:25:00.000-07:00

Mostly, the tenant that has been used in Colorado Courts over the years has been: Never involve the children in divorce issues.

In June of 2008 a Colorado Family Law Survey was conducted that included responses from 156 lawyers, 41 mental health professionals, 17 Judges and 16 Magistrates. The survey asked the following questions:

How often are children's ideas and opinions considered in the parents' divorce?
How often do parents and children jointly define goals for their post-divorce family?
How often are children interviewed by judges and magistrates?
Do children participate in mediation?
Are children ever interviewed by the mediator so their suggestions could be considered int he design of a parenting plan

Here are some of the findings:

The choices being that children's opinions are considered occasionally, somewhat frequently or frequently in their parents' divorce: 54 % of Attorneys/Health Professionals and 61% of Judges/Magistrates chose occasionally.
Judicial interviews with children are rarely requested by lawyers or mental health professionals and 83% of Judges/Magistrates reporting said children occasionally attempt to meet with them but 56% stated they never or rarely request an interview with children.
70% of Judges/Magistrates responding stated that they never or rarely suggest that a child be interviewed by a mediator or child specialist who can, with the child's consent, bring the child's ideas and suggestions to a meeting with the parents.

You can see from the survey that children are rarely involved in divorce decisions that pertain to them in Colorado. Comments from Judges showed a wide range of opinion as to the value of a judicial interview with children when making parenting decisions. Here are four comments that show the range:

I am always concerned that, if I interview the children and then rule on the case, they will believe that they either influenced my decision or that they failed to influence my decision. This places too much responsibility on the child.
I have allowed children who are teenagers, sometimes younger, to speak to me when they have attempted to make it known they want to speak to the judge. I think they appreciate that they have been heard. This does not occur when there is a CFI (Child and Family Investigator) or Evaluator (Psyc Evaluation) assigned to the case.
I am leery about interviewing children for several reasons. I am concerned that I do not have the training to discern weather...I am hearing their true opinions or concerns instead of what the parent who is in favor at the moment as told them to say. I don't feel that I have the necessary set of skills to interview children to obtain the information I need without causing them further emotional damage, for example, putting them in the position of taking sides between two people they love. I also have concerns over the confidentiality of the disclosures they make and I ordinarily won't interview the children unless the parents and their counsel agree that the results will not be disclosed and no one will attempt to access the transcript of the interview.
The Court is criticized for interviewing the children because of the availability of CFIs, mediators ect...In past times I always thought that I was doing a good job of HEARING the children. Most of the times that I interviewed children, I felt that I was the only person who heard their desires or concerns.

There were a number of respondents, attorneys, mental health professionals and judges that acknowledged a need for finding ways to allow children's voices to be heard. They felt that children's thoughts, needs and concerns were critical pieces of information that are not getting to the parents, attorneys and the Courts.

The question is still up for discussion and child inclusive models may be available depending on who's court you are in. Check with your attorney on what might be available in your case. Ask about the following possibilities: Family mediation, Mediator interviews with children, Child specialist interviews with children, judicial interviews with children or therapeutic intervention with a therapist who specializes in working with children and family issues. There are also cases where a Child and Family Investigator is called for.

The source of the information in this entry is: Child-Inclusive Divorce: 2008 Colorado Family Law Survey, 37 Colorado Lawyer, No. 10, pg 77-82, Oct. 2008. referencing "The Colorado Family Law Survey", May-June 2008 by Joan H. McWilliams and Donna Kearney

Stepparent Adoption: What Constitutes Abandonment?

2009-05-20T14:04:00.000-07:00

In Colorado, a stepparent (someone married to a biological parent) can adopt a child if it can be proved that the other biological parent has abandoned the child for the previous 12 consecutive months. CRS 19-5-203(1)(d)(II).

In the recent Colorado Appeals case No. 07CA2169, In the Matter of the Petition of J.A.V., and Concerning N.K.B. The Colorado Court of Appeals states that Abandonment requires leaving a child willfully and without intent to return. In this case the biological father was under a protection order that prohibited any meaningful contact with the child, despite the fact that he had filed a petition for allocation of parental responsibilities and motioned the court to modify parenting time. These actions all took place in the 12 consecutive months prior to the filing of the stepparent adoption proceeding.

The district court found that the father "took no actions to pursue (his) relationship or have access to his daughter" and allowed the stepparent adoption to go through.

The Appeals Court found that by ignoring the biological father's efforts to obtain parenting time with his child through the court system, the district court erred by not properly applying the definition of abandonment regardless of whether the father might have done more to enforce his rights. The Appeals Court reversed the order terminating the biological father's parental rights and the case was remanded to the district court to proceed with the parental responsibilities case brought by the biological father.

Welcome to Matthews & Matthews PC's Family Law Blog

2009-05-20T13:43:00.000-07:00

Here at Matthews & Matthews we are committed to keeping you apprised of new developments in Colorado family law. We will update this blog with relevant information to anyone dealing with a family law issue.

If you would like to contact us directly with a question please call 303-329-3802 or email us through our website at www.matthewslaw.com.