Author: Ninjas

Advice on Co-Parenting During the Coronavirus

By Attorney Ashley Balicki

I wanted to give you some guidance and general advice to co-parent through this new and confusing period.

Decision-Making: If you, a member of your household, or your child are diagnosed with COVID-19 immediately advise the other parent. Do not hide this information. Communicate with your child(ren)’s parent and agree on uniform practices in both households. For example, parents should confer with one another and agree upon uniform practices with the child(ren) in each household such as not having play dates or having children visit others outside outdoor activities at each home and communicating with extended family members via telephone/FaceTime. If you must convey information or diagnoses to your child that may alarm or upset your child, speak with the other parent to create a joint message before speaking with the child.
Parenting Time: Use common sense, if a member of your household is known to have had contact with an infected person or the children were known to be infected in one household, communicate this to the other parent. Agree on where the children will remain during this time if it no longer makes sense to abide by the court ordered parenting time plan for safety reasons. It is unlikely courts will penalize parents for alternating their parenting time schedule as a result of safety measures taken to protect the child(ren).
Childcare: Parents should confer about childcare needs based upon their respective work schedules and work to provide care themselves rather than bring in third parties unless absolutely necessary.
Adaptation: Be reasonable an adaptable. These are hard and stressful times on everyone. The changes brought about because of public safety issues and concerns are temporary. Put your child’s safety first and keep on keeping on.
Make a Record: If parenting time is at variance with the court ordered parenting time, keep your own record of how the arrangement came about, when it was agreed upon, and what the new arrangement is, and how long it is to last. Then, to avoid misunderstandings, confirm it in email to the other parent. This might avoid real and current case confusion, or a later claim that there was no agreement to a different one,
Medications: Make sure each household has an ample supply of any medications the child(ren) may need for the potential period of altered circumstances.
E-Learning: Long term e-learning practices are new for many parents. Be sure to stay on top of your children’s daily work. Communicate with the other parent about the child’s schooling. If one parent is better suited to address these responsibilities by virtue of their work schedule, consider allowing that parent to perform this function daily.
Travel: Consider canceling spring break plans, which may be involuntary as the situation unfolds.
Child Support: If you experience financial difficulty during this time as a result of job loss or temporary loss of income, a child support modification may be warranted. Please contact us if this becomes an issue.
Emergency Matters: Understand that disputes and issues that might arise regarding your child(ren) are going to have to be resolved in some many other than going to court. Rapid access to the court and the ability to obtain a hearing will be severely diminished for some time. It may be necessary to have counsel confer, mediate by phone or video conference, or take other creative steps to arrive at an amicable solution.

Questions: Inevitably as you navigate this path, questions will arise. Please do not hesitate to contact us with any questions you may have, either by phone at 720-542-6142 or fill out our contact form here.

If I’ve Lost My Job Due To The CoronaVirus, Can I Get My Maintenance or Child Support Payments Reduced or Changed?

Have you experienced an interruption to your job due to the coronavirus such as a reduction in hours or loss of job? Can you get your maintenance or child support payments reduced or changed if this is the case and how quickly?

The coronavirus is pushing the country into uncharted waters, jeopardizing nearly half of American jobs. If your work has been impacted by the coronavirus, you may wish to modify the amount of maintenance you are paying your ex-spouse. The first step in tackling this question is to determine whether you can modify maintenance in the first place.

If you and your ex-spouse were able to agree to maintenance as a part of a larger separation agreement, you may have agreed that maintenance is modifiable, or non-modifiable. If the separation agreement states that maintenance is modifiable, then keep reading.

Adversely, if the separation agreement expressly states that maintenance is non-modifiable, then you are unable to request a modification, period. You must pay your maintenance pursuant to the terms of the separation agreement, regardless of changing circumstances.

If maintenance was awarded by the judge at your permanent orders hearing, then it is always subject to modification. This is mandated by Colorado Statutes, which states: “Except upon written agreement of the parties, an award of maintenance entered pursuant to this section may be modified or terminated pursuant to the provisions of section 14-10-122.” §14-10-114(5)(a), C.R.S.

In order to modify maintenance, you must meet the legal requirement, which is “a showing of changed circumstances so substantial and continuing as to make the terms unfair.” §14-10-122(1)(a), C.R.S.

When dealing with child support, there is a higher bar to meet, as the change must result in at least a 10% difference in owed support. Maintenance, on the other hand, depends on whether you can prove to the court a “substantial and continuing” change in circumstances.

This is not an either-or test; you must prove that the change in circumstances (your lost job, for example) is both substantial and continuing.

What courts look for is a change in circumstances so substantial that it renders the original maintenance award unfair. A modest change to your income is not likely to be seen as substantial, no matter how permanent it may be.

Loss of employment, while immediate and substantial, is usually temporary. If you will likely be re-hired when the pandemic subsides, it is likely premature to file for a modification of maintenance or child support because you will be unable to meet the legal requirement that the change in employment circumstances is continuous, not just substantial.

If you have any questions or concerns about your maintenance or child support call us at 720-542-6142 to speak with one of our attorneys, or fill out our form here.

Because family law is an extremely personal matter we are not eliminating face-to-face meetings at this time. However, we do have virtual and telephonic meetings available and strongly encourage them for anyone who wishes to conduct their consultation via telephone or computer in accordance with social distancing protocols.

Announcement: Divorce Matters’ Response to Coronavirus

We are monitoring all coronavirus developments and adjusting our firm’s operations as necessary to protect the health of our clients, employees and the community at large. Effective March 16th we are implementing the following:

To continue serving our community, our firm is offering secure telephonic and virtual consultation and meeting options during this time.
Our firm employs technology which ensures that our clients can send, receive and execute documents remotely.
We have increased routine cleaning and disinfecting of surfaces, equipment, and common work areas like conference rooms and work room areas.
Additionally, as a precaution, the building has increased surface cleaning throughout common areas. They have also increased cleaning within each individual suite, and will continue to do so in the coming weeks.

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I’m Worried My Ex May Have COVID-19, Do I Have To Send My Child To Them For Their Regularly Scheduled Parenting Time?

Following a divorce or separation, the reality for many children becomes a shuffling of back-and-forth between each parent’s home based on a court-ordered parenting time schedule. But what happens if one parent, or someone that parent came in contact with, becomes infected with the COVID-19? What if the other parent lives in a different state? Is self-quarantine reason enough to fail to comply with court-ordered parenting time?

Failure to comply with court-ordered parenting time always poses a risk of contempt for parents, meaning that one parent could seek criminal and civil sanctions against the non-complying parent along with enforcement of the parenting plan. However, one of the key defenses to a contempt charge is the present inability to comply with court orders. Events such as school closures, flights canceling, and travel bans can all (arguably) impact a parent’s present ability to comply with court orders.

Because this coronavirus is so novel, there are no clear answers to when one parent may be justified in withholding court-ordered parenting time based on fears alone. Of course, if there is clear evidence a parent or member of that parent’s household is infected, common sense seems to take the reins.

Fear alone is not enough. Some factors to consider in making the decision whether to withhold parenting time are:
”¢ Whether the non-infected parent lives in a community with an outbreak;
”¢ Whether members of the non-infected parent’s household have been exposed;
”¢ Whether there are especially vulnerable or at-risk household members in the non-infected parent’s home;
”¢ Whether community containment efforts are in effect;
”¢ Whether the child’s life has been impacted, such as closed schools

However, the risk of choosing to withhold parenting time varies on a daily basis with new updates on the coronavirus. While the decision to withhold parenting time may have seemed reasonable on Monday, the parent’s actions may just as likely be seen as unreasonable by Friday. It is unclear if a court can order a parent to be tested for the coronavirus.

Choosing to violate a court order is never risk-free. If parents cannot agree on how to handle exchanges, one parent can file an emergency motion with the court seeking an order permitting a temporary suspension of parenting time.

Another option for parents trying to limit the child’s exposure to a possibly infected parent is to file an emergency motion to restrict the infected parent’s parenting time. However, there must be a risk of imminent harm to the child; hence why fear is not enough.

On the other hand, if a parent was wrongly withheld from his or her parenting time, there are remedies that can be addressed through enforcement of the parenting time. For example, courts can award make-up parenting time to the withheld parent.

However, if the courts close due to the coronavirus, there may not be any recourse until after the doors reopen. Check with your local government offices for an updated list of closures. Call our firm at 720-542-6142 if you have any questions regarding your current parenting time agreement and would like to speak with one of our attorneys or fill out our form here.

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What Happens if Divorce Goes to Trial in Colorado?

Many divorces can be resolved amicably, which speeds along the process and is usually less expensive for all involved. However, sometimes divorcing couples cannot agree on certain key terms of their divorce, such as custody or alimony. In these situations, going to trial might be unavoidable. Below, our Colorado divorce lawyers sketch out what happens at a divorce trial in Colorado.

Discovery

The discovery process allows each side to request information from each other and from third parties. In a divorce, we often request bank records or other financial information. Spouses might need to sit for a deposition, where they answer questions under oath, or a judge could order a psychiatric evaluation of each parent to help determine who the children should live with. Discovery can be a lengthy process, taking many months or over a year. For this reason, it can be very expensive.

Status Hearings and Other Court Dates

“Going to trial” is rarely a linear, smooth process. There are many mini disputes that judges need to decide. For example, you might want copies of your husband’s business records but he doesn’t want to cough them up. A judge needs to decide this issue.

There might also be many status hearings where the lawyers come in to tell the judge how the litigation is proceeding. It is also not unusual for the court to set a trial date but for it to be delayed””sometimes multiple times””because the lawyers are busy or the court’s docket is crammed full.

The Trial

In many ways, a divorce trial is no different from other trials. However, there is a key difference””the judge will decide the case. So there is no jury to select.

The evidence presented will depend on what issues are in dispute. Some couples only dispute a few issues””say child custody and the division of marital property””but don’t dispute other issues, like child support. Still other couples dispute everything.

If a judge needs to allocate parenting time (custody), then witnesses can include teachers, babysitters, family, and friends. Evidence might include medical records and school report cards.

It is not unusual for our clients to have to testify, which can be extremely stressful. Also, friends and family might not want to testify but can be forced to. Compelling testimony can often put a strain on a relationship, sometimes permanently.

After hearing all evidence, the judge will usually state that he or she will take the case under advisement and issue an opinion later, usually after a few weeks.

Divorces in Colorado Are Usually Public

Courtrooms are public places, and there must be a very good reason for the judge to close the doors. Anyone can sit in and listen, though most of the people will probably be lawyers and other couples who need to appear before a judge. If you have dirty laundry in your divorce””infidelity, financial mistakes, mental health or substance abuse problems””then that embarrassing information could all come out. If you are a public figure, then expect the press to report on the proceedings.

Discuss whether to Go to Trial with Your Attorney

Divorce trials are rarely ideal, though they are sometimes unavoidable. When your spouse is acting unreasonably, then the smarter move could be to take your day in court. Your Colorado divorce lawyer will help you decide what is in your best interest.

At Divorce Matters, we have handled many trials and guide you through the process. Reach out to a member of our team to schedule your confidential consultation.

Can My Spouse File Divorce in a Different State after Moving?

You might think that a couple must divorce in the state they got married in, but the law says otherwise. Instead, each state sets certain residency requirements that must be met before the courts in their state will assume jurisdiction over a case. If a person meets the requirements, then the court can hear the case and issue a divorce decree. So, yes, it is possible for your spouse to file for divorce after moving to a different state.

Learn the State’s Residency Requirements

In Colorado, one spouse must have lived in the state for a minimum of 90 days before petitioning the court to divorce. This is not a great length of time. The law also allows either spouse to meet the residency requirements, not solely the spouse who files for dissolution of marriage. So a husband can move to Colorado from California, and 90 days later his wife can file for divorce in Colorado even though she is still living in California.

To meet the requirement, a person must be “domiciled” in Colorado for 90 days. Domicile is a legal concept that basically means the person has made their home there and intends to stay. Someone visiting Colorado for 3 months is not domiciled here, and someone who intends to move back to a different state is also not domiciled.

If you live in Colorado and your spouse has moved, you should learn what the requirements are in his or her new home state. For example, in Florida, one spouse must have been a resident in the state for at least 6 months before filing for dissolution of marriage.

Child Custody when a Spouse Has Moved Out of State

A federal law, called the Uniform Child Custody Jurisdiction and Enforcement Act, might prevent another state’s court from deciding custody. This law states that courts in a child’s “home state” have exclusive (and continuing) jurisdiction to decide child custody issues. The law defines home state as the state where the child has lived for 6 continuous months before the petition to dissolve a marriage was filed.

So if your husband moves to Florida and files for divorce there, but the children have been with you in Colorado for the 6 months before he files, then the Florida court will not decide child custody. If your child has not lived in any state for at least 6 months before the court action was filed, then a court looks at which state the child has “significant connections” and substantial evidence of care for the child.

The Advantage of Filing First

If your spouse is the first person to the courthouse, you might find yourself travelling to another state to attend court hearings. This can be expensive and time-consuming. Also, if you miss a hearing, then something could be decided without your presence or input, which is far from ideal. By filing first, the court in Colorado can take exclusive jurisdiction over the entire divorce case.

If you are asking, “can my spouse file for divorce in a different state?”, the legal team at Divorce Matters can help you. Contact us today to schedule a consultation.

Appealing a Judge’s Decision Regarding Your Colorado Divorce

Judges sometimes make mistakes, and when they do, there is a process for getting the error corrected. This process is called bringing an appeal. You file an appeal by asking a higher court to review the decision below and decide whether to overturn the trial court’s decision.

Bringing an appeal doesn’t always make sense. Sometimes a client is so upset with a judge’s decision that they immediately want to file an appeal. But it is important to first understand what an appeal is so that our clients can decide whether an appeal is the right move for them.

Appealing a Divorce Decision in Colorado is Decided Only on the Record

In an appeal, the court will rely only on the record created at trial to determine whether the judge made a mistake. This means the court will look at the transcripts and any written decisions a judge issued.

As a rule, appellate courts do not accept new evidence. No witnesses testify, and no new physical evidence is presented. If you didn’t present a key piece of evidence at trial, you don’t get a chance to do so on appeal. Instead, lawyers point to the transcripts from the trial and argue why the judge made an error that warrants reversal.

Appellate Courts Reverse in Only Limited Situations

Many of the issues in dispute in a Colorado divorce are judgment calls. For example, a judge must look at a variety of factors to determine what is in the child’s best interest when deciding custody. No two judges will analyze the same case the same way, and you generally can’t appeal because you are unhappy with how the judge weighed the different factors.

Instead, most appeals are brought for one of two reasons:

The judge got the law wrong. For example, a judge might say Colorado law requires that mothers be given custody of young children, which is wrong. If the judge decides custody based upon this wrong legal standard, then the appellate court will usually reverse and send the case back down to the judge to decide using the correct law.
The judge’s decision is completely unreasonable. This is harder to win an appeal on. Appellate courts don’t want to second guess a judge’s decision. However, if a judge completely ignored evidence, you might prevail.

If either situation applies, it can be to your advantage to bring a prompt appeal.

Appeals Can Be Expensive

Unless the judge made an obvious error, an appellate court is unlikely to reverse. Even if you win on appeal, your divorce case will likely go back to the trial judge to decide again, and you still might be unhappy with the new decision.

Instead of immediately appealing, we encourage clients to consider other options. For example, they might bring a motion later to modify custody or child support, which could be less expensive and have a higher degree of success.

If you are unhappy with a judge’s decision, speak with your Colorado divorce lawyer about what you should do. The lawyers at Divorce Matters have brought many successful appeals and have counseled countless clients about their best options.

What Federal Laws Affect My Colorado Divorce?

Divorce, like marriage, is generally a creature of state law. However, several federal laws will play a key role in how your divorce plays out, as well as the ultimate terms of your divorce settlement. At Divorce Matters, we stay abreast of changes in state and federal laws that affect our clients, so we are well positioned to advise you of your rights. If there has been a change in the law, we are aware of it and can use it to your advantage.

The Tax Cuts and Jobs Act

Before the passage of this federal law, the spouse who made alimony payments could write off the amount on their taxes. This policy changed with the recent amendments to the tax code. Now, the spouse who gets alimony does not need to report it as income on their return. Instead, the spouse who pays alimony must not only pay the amount but pay federal income tax on it.

Consolidated Omnibus Budget Reconciliation Act (COBRA)

Getting divorced often spells the end of health insurance for men and women who are on their spouse’s insurance offered through work. However, the federal COBRA states that spouses can stay on the health insurance policy for a maximum of three years. During this time, though, the spouse is responsible for paying the full premiums, which can make coverage very expensive.

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Many spouses move and file divorce in a different state. The UCCJEA tries to bring uniformity to determining which state’s court has jurisdiction to hear child custody matters. Before the passage of this law, courts might compete to decide child custody.

Under the law, a child’s “home state” has exclusive jurisdiction over child custody issues. The “home state” is defined as the state where the child has lived for the six months before the divorce or child custody proceedings were filed. So even though your spouse may file for divorce in California, a Colorado court could have jurisdiction over child custody depending on how long the child has lived in this state.

If the child has not lived in a state for at least 6 months before filing for dissolution of marriage, the state with “significant” ties will be the home state. Given how often people move around before and after divorce, the UCCJEA has come into play quite frequently.

Employee Retirement Income Security Act (ERISA)

Congress passed this law to shore up the country’s pension system. Today, the law covers pensions and other employer-sponsored group benefit plans, like health and disability insurance.

ERISA most frequently comes into play when a couple divorces and needs to divide a pension, which is marital property. The plan administrator will only divide the pension if there is an adequate Qualified Domestic Relations Order, or QDRO for short. Without a valid QDRO, a divorcing spouse could end up without the portion of a pension they were expecting, which can harm them financially.

If you have a question about federal laws and Colorado divorce, please schedule a consultation with Divorce Matters today.

What Benefits Do You Lose after Divorce?

Marriage provides many financial benefits. Unfortunately, one side effect of a divorce is losing some of these key supports, which is why it is vital that people considering divorce meet with an attorney. By reviewing your situation, a lawyer at Divorce Matters can help you better understand the financial effects of dissolving your marriage.

Have you been asking “do I lose benefits if I divorce in Colorado?” Below, we look at some benefits that many clients lose after obtaining a divorce. Each person’s situation is different, so contact us for an individualized case assessment.

Tax Breaks

There are many tax advantages available to married couples. For example, a couple can get a larger limit on charitable contributions, which can lower their overall taxable income and the amount they send to Uncle Sam each year.

Married people who file joint tax returns might also pay less in taxes, particularly where one spouse earns much more than the other. These tax savings can make a big difference, because you are likely to see a drop in income as well once you divorce. You should carefully budget to determine how much you need to support yourself after you become single.

Health Insurance

Many husbands and wives are on their spouse’s health insurance policy through work. When a person divorces, they will no longer be eligible to remain on the policy. However, a federal law (COBRA) allows you to stay on the insurance for up to three years, provided you pay the entire premium yourself. If you fail to pay a premium, you will lose coverage. Paying for insurance tends to be pricey, since you are no longer benefiting from any employer contribution.

With the rise of Obamacare, however, divorcing spouses have more options for receiving insurance coverage and should discuss them with a lawyer. Some spouses will also qualify for tax subsidies now that their income is lower, which can make purchasing coverage much more affordable. Who said there weren’t any financial benefits to getting divorced?

Retirement Benefits

While married, retirement benefits like pensions and 401(k) accounts are generally considered marital property. This means that they could be divided during the divorce, since Colorado is an equitable division state. Of course, your spouse might take other marital assets instead of your retirement account, but there remains a distinct possibility you could lose some retirement savings.

Instead of receiving the full retirement amount, a person could have a much smaller nest egg available when they choose to say “goodbye” to full-time work. In some situations, it is better to give up other assets, such as equity in a home, than to cut up a retirement account.

Talk with a Colorado Divorce Lawyer about Benefits

Some divorced people will actually qualify for benefits, especially if their spouses made much more than them. Now on their own, they could qualify for government assistance programs that help people who are low income.

You can discuss all of this with an attorney at Divorce Matters. Contact our law firm to schedule a consultation with one of our Colorado divorce lawyers.

How to Remain Objective During Divorce

Divorce is an emotional time. Although some couples are exhausted and welcome the divorce, others feel powerful emotions, including disappointment and anger. It is very easy to lose your objectivity, especially if your spouse has a new boyfriend or girlfriend.

As seasoned divorce lawyers in Colorado, we understand the importance of objectivity. When people are ruled by their emotions, they often try to “strike back” at their spouse or fight every little issue trying to “win” the divorce. Emotional spouses get caught up in divorces that never seem to end and that frequently leave them more bitter than they were when they started.

To remain objective, follow the tips below for avoiding emotional decisions during divorce in Colorado. In addition, you should meet with a divorce lawyer, who can act as a sounding board during this difficult time.

Find an Objective Friend to Bounce Ideas Off

There is nothing more refreshing than the perspective of another person. This should not be someone too close to you, like your mother, who might have always hated your spouse. Instead, choose a friend or a sibling who does not have strong feelings about your mate.

Of course, the person you choose needs to be someone you can trust and someone who truly wants to listen to what is going on. A work acquaintance, for example, might be overwhelmed by all the personal details you are sharing. And hesitate before choosing someone who is also friends with your spouse.

Try Mediation

In mediation, a neutral person listens to each side describe a dispute. The mediator isn’t a judge; however, he or she can often help couples find areas of agreement. A good mediator can also help each side truly see what issues are in dispute and can propose creative ways to work around the issue.

Mediators don’t decide a winner and loser, like judges do. But they can often see things that people who are mired in their emotions cannot.

Lean on Your Lawyer

Your lawyer is your advocate. But a lawyer is also a professional who realizes that the best advocacy needs to be based on objective analysis of the facts and law. If your lawyer is telling you that your chances of getting 100% of the marital property are close to zero, you should believe what they tell you.

A key feature of any divorce is trying to reach a settlement. This often involves “horse trading”””giving up something you want in order to get something else. In our experience, emotional clients who lack objectivity want to give up nothing, which is simply unrealistic. Even at trial, few people get everything they request.

An objective lawyer will also advise you of when to fight and won’t settle just for the sake of settling. For example, if your spouse is abusive, then there is little reason to agree to shared parenting time just to avoid going to court.

Speak with a lawyer at Divorce Matters today. We can take an objective look at your case and advise you about what you will likely walk away from your marriage with.