What is Emergency Child Custody & How Do I Pursue It?

When a child is endangered, Colorado law allows for the court to suspend unsupervised visitation between the child and the parent that is endangering the child. This is an important tool that has helped save the lives of countless children.

However, Colorado also penalizes people who make false allegations. If you are concerned that your child is in immediate danger, please contact law enforcement. Then reach out to a Denver emergency child custody lawyer at Divorce Matters to discuss your case.

Defining Child Endangerment

A child must be endangered before a court will award emergency child custody. Under the law, endangerment can be either emotional or physical.

A judge will analyze many factors to determine whether endangerment exists, such as:

  • Physical abuse
  • Sexual abuse
  • Drug or alcohol abuse
  • Psychotic breaks or mental health concerns
  • Domestic violence

Other actions can exhibit extreme neglect which might also qualify as endangerment, such as:

  • Leaving a child unsupervised for long periods of time
  • Failing to pick up a child from daycare on multiple occasions

Requesting Emergency Child Custody

To start the process, you should file a motion in court. This motion must allege that the child is endangered under CRS 14-10-129(4) and include sufficient factual allegations to support the charge. A barebones accusation that a child is endangered is rarely adequate.

Once the motion is filed, a judge will order that all contact between the child and the parent be supervised by a mental health professional or some other third party who is unrelated. The court will also schedule a contested hearing within 14 days. At the hearing, each side can present evidence in the form of witness testimony or physical evidence. For example, you can have people testify who saw the other parent act violently toward your child.

After hearing evidence, the judge will decide what to do. Some options include:

  • Deny the motion to restrict parenting time
  • Continue the restrictions in place
  • Put fewer restrictions on parenting time or more restrictions

Colorado law encourages children and parents to maintain contact, so judges hesitate before altering the custodial arrangements.

Penalties for Wrongful Accusations

If the accusation is groundless, vexatious, or frivolous, then the judge can punish the person who made the allegations. For this reason, it is vital to meet with an attorney before filing your motion. Some parents make unwarranted accusations of endangerment, simply to strike back at another parent, and judges in Colorado will not tolerate that.

Penalties can include having to pay the other side’s reasonable attorneys’ fees and costs. Remember that simply losing the contested hearing does not mean that you will automatically have to pay the other side. Sometimes, there is a good faith dispute about the other parent’s conduct and whether it rises to the level of endangerment. In any event, you should focus on protecting your kids and speak to a lawyer before filing a motion.

Contact Divorce Matters Today

If you fear your children are endangered, an attorney at Divorce Matters can help. We will run through your legal rights and assist you in seeking custody during this stressful time. We will also help you build up a strong factual base so that you are not accused of filing a groundless complaint. Contact our team to schedule an initial consultation.

Can A Change In Salary Modify Maintenance?

Either you or your former spouse recently had your salary change.  Now, one or both of you wants to modify your maintenance, or alimony, agreement.  What happens next?

Is our maintenance agreement modifiable?

The first question is whether your maintenance agreement may be modified.  Some divorce decrees or spousal agreements restrict the ability of the parties to later modify the maintenance award.  If your maintenance agreement is not modifiable, the change in salary will have no effect on your maintenance award.

If maintenance was determined by a court order, it is modifiable.  Generally, the court retains the ability to modify a spousal maintenance award. 

Will a change in salary affect my maintenance?

The short answer is “it depends.”  For maintenance to be modified, there must be a continuing and substantial change in circumstances that makes the current arrangement unfair.  A significant increase or decrease in either party’s salary could meet this criteria.

Whether there is a “continuing change” in circumstances is relatively easy to determine.  If you or your ex receive a raise or take a new, higher-paying job, that’s a “continuing change” ”“ your increased salary is expected to continue indefinitely.  On the other hand, don’t rush out to modify your maintenance agreement if one of you loses your job: job loss is considered temporary and won’t convince a court to immediately modify your agreement.  However, if you are still unemployed a few months later, despite a good faith search for a new job, your unemployment may be considered a continuing change.

Whether a change in salary is “substantial” enough to warrant maintenance modification is harder to define.  Colorado’s child support formulas define a substantial change as 10% or more.  However, there is no similar guidance when it comes to maintenance.   In modifying maintenance awards, the court will look at each party’s income and other financial circumstances and try to reach the most fair result.

In modifying maintenance, the court will look at both parties’ incomes and other financial circumstances and try to reach the most fair result.

How is a change in maintenance obtained?

If you believe you are entitled to a change in maintenance, you should request a modified maintenance order by from the court.  This is done by filing a Motion to Modify or Terminate Maintenance.  The court will review your motion, and may set a hearing to review it.   At a hearing, you and your attorney should be prepared to explain why the circumstances justify modifying your current maintenance.

If the court agrees to modify your maintenance, the modification will apply to any maintenance payments due since the Motion to Modify was filed.  It will not apply to payments due prior to filing, regardless of when the change in salary (or any other change in circumstances) took place.

If your salary or your ex’s salary has changed and you’re considering whether it should affect your maintenance, a good place to start is the Divorce Matters Calculator App.  Using our app to determine what your modified maintenance might be can help you determine if seeking maintenance modification is makes sense for you.

What Happens to Your Debt When You Get Divorced?

Whether it’s a mortgage, car payment, student loans, or credit cards, almost everyone has some kind of financial debt. When a couple gets divorced, their marital debt, just like their assets, must be divided between the two parties.

What is marital debt?

When it comes to married couples, there are two categories of debt: marital debt and personal debt.

Personal debt is debt one party incurred prior to the marriage. In the case of divorce, personal debt goes back to the original owner.

Marital debt is debt incurred by a couple during the course of their marriage. Generally, debt acquired during marriage is considered marital property even if it was obtained in the name of only one spouse. There are many reasons a couple might decide to take out debt in only one of their names ”“ for instance, one party may have better credit than the other. Therefore, this debt is considered marital debt because it is presumed to benefit the whole couple or family unit.

How is debt divided upon divorce?

A court will try to divide a couple’s marital debt equitably, which does not necessarily mean equally. Courts will look at the surrounding financial circumstances to allocate debt (and assets) between the two parties. The circumstances considered may include (among other things):

Ӣ Why the debt was incurred,
Ӣ When in the marriage the debt was incurred,
Ӣ The length of the marriage,
”¢ Each party’s ability (or inability) to pay the debt, and/or
Ӣ The contributions of the parties during the marriage.

If one party is granted an asset in divorce (for example, a car or house), that party is generally responsible for the debt associated with that asset (the car payment or mortgage).

Courts can divide all debt accrued up to the date a divorce is final. But what about debt accrued between the time a couple separates and when their divorce is finalized? What if one party has been recklessly or secretly spending ”“ for instance, spending money on an affair or racking up debt to harm or get back at the other party? In those cases, there is likely an argument to the court that the debt accrued by one party after separation or in anticipation of divorce should belong solely to the party that accrued it. The court should consider those circumstances in equitably dividing the debt.

Once the debt is divided, you should take steps to ensure that only the responsible party’s name remains on the debt. If the debt remains in both names and your former spouse fails to pay, you may be see negative consequences like a hit to your credit score or calls to creditors. Retitling the debt in the name of each individual will help protect you if your former spouse fails to pay the debt he or she has been assigned.

What about student loans?

One particularly tricky category of debt is student loans. By their nature, student loans belong to one party ”“ the party receiving the education. However, the benefit of receiving the education (like a higher salary) likely benefitted the whole couple or family.

Generally, student loans incurred during marriage are considered marital property, but arguments can be made that student loan debt should be carried solely by the student-borrower. In particular, courts may look at the length of the marriage, when the education was undertaken, and the contributions of each party.

What is Contempt of Court and How Does It Affect Me?

Contempt of court is failure to comply with the authority of the court.

There are two categories of contempt: direct and indirect. Direct contempt involves behavior in the courtroom ”“ for instance, refusing to answer a judge’s questions. Indirect contempt involves behavior outside of the courtroom, such as failing to comply with a court order.

When it comes to family law and divorce proceedings, the most common area for contempt of court is child support. Specifically, a party may be in contempt of court when he or she fails to pay child support as ordered by the court. Because child support payments are due monthly, there are many opportunities for noncompliance. Other areas where contempt concerns may arise include alimony, child custody, and property separation orders.

What do I do if I think my ex is in contempt of court?

If you believe your ex is in contempt, you (or your attorney) may file a Motion for Citation for Contempt of Court stating that (1) a valid order of the court was in place, (2) the offending party knew about the order, (3) the offending party had the ability to comply with the order, and (4) the offending party failed to comply with the order.

You may request that the court find the other party in either (or both) remedial contempt or punitive contempt. Remedial contempt is designed to encourage the offending party to comply. Under remedial contempt, you must show, by a preponderance of the evidence, that the four elements outlined above are satisfied. “By a preponderance of the evidence” means it is “more likely than not” the elements are satisfied. You may request a fine or imprisonment be imposed on the other party until he or she complies with the order, as well as payment your attorney’s fees incurred in connection with the contempt proceeding.

Punitive contempt, on the other hand, is meant to punish the offending party for not complying with the order. Instead of simply showing that the offending party didn’t comply, you must show that the other party willfully defied the order. Again, you may request a fine or a fixed term of imprisonment be imposed on the other party. The burden of proving punitive contempt is much higher than for remedial contempt: in addition to proving the other elements, you must prove beyond a reasonable doubt that the failure to comply with the order was willful.

What do I do if I have been charged with contempt of court?

If you are charged with contempt, it is in your best interest to make payments or otherwise comply with the order, if you can, as soon as possible. The court will schedule a hearing on the Motion for Citation for Contempt of Court, which you must attend. If you do not, the court may issue a bench warrant for your arrest. At the hearing, you will be able to defend against the citation and explain why you should not be held in contempt.

The court will consider the circumstances surrounding your failure to comply with an order in determining whether to hold you in contempt. Failure to comply might not automatically result in a contempt citation. For instance, if you have lost your job, the court may find that you are unable to pay the ordered child support and therefore determine you are not in contempt.

If you are found to be in contempt, you may have to pay a fine, be subjected to jail time, and/or have to pay the other party’s attorney fees.

Contempt proceedings take time. Generally, it takes two to four months to resolve a contempt citation, but it can take longer. Often, failure to comply with an order can be resolved through negotiations by your attorneys, rather than through the court. If you need help with your situation, call us at 720-542-6142 or contact us here to speak with one of our attorneys.

What is a “No Fault” Divorce?

Colorado is a “no fault” divorce state. What does that mean?

In the past, obtaining a divorce was more difficult than it is today. You had to show grounds for why a divorce should be granted and the marriage contract dissolved. These grounds, or justification for the divorce, included abandonment, abuse, and neglect.

Then Colorado became a “no fault” divorce state. This means you no longer need a reason for a divorce ”“ a couple may get divorced for any reason at virtually any time. For legal purposes, it is enough that at least one spouse considers the marriage “irretrievably broken,” meaning there is no chance of reconciliation.

Like the name suggests, in a “no fault” divorce, a divorce court will not assign fault or blame to either party. The divorce does not need to be justified to the court and neither party’s behavior can be used against them as the “at fault” party.

How Does This Affect My Divorce?

Because no one is legally “at fault,” a court won’t consider either party’s behavior or fault in the division of assets and other financial matters, such as alimony. In fact, a judge generally won’t even allow a party to present evidence of the other’s behavior, because it simply isn’t relevant. The parties aren’t trying to convince the judge to grant them a divorce; rather, the judge is dealing with issues such as the dissolution of property, splitting financial assets, and determining parenting time. In other words, from a legal perspective, the judge is concerned with the effect of a divorce, not the cause.

Is There Any Time That One Party’s Behavior May Be Considered In Divorce Proceedings?

There are exceptions where evidence of a party’s behavior may be relevant to the divorce proceedings. One exception is where a party’s behavior directly impacts the couple’s children. In that case, a divorce court may take the behavior into account in determining parenting time in order to protect the children.

Another situation where behavior may be relevant to the divorce proceedings is in the case of economic fault. Economic fault is where one party wastes assets or incurs debt in anticipation of the couple’s divorce, thereby reducing the value of the joint marital estate. This exception is quite rare and must be carefully presented to the court.

Generally, a “no fault” divorce results in quicker, more streamlined divorce proceedings than the old “at fault” model. It is considered more equitable and fairer to the parties.

If you have questions about your no fault divorce, call us at 720-542-6142 or contact us here to schedule a comprehensive consultation with one of our experienced attorneys.

Will My Religion Affect My Divorce in Colorado?

Colorado is home to people of many different religious faiths. We have countless Protestants, Catholics, Jews, Muslims, Hindus, and Buddhists, in addition to people who practice no formal religion. Like other states and the United States as a whole, Colorado does not have an official state religion, so your religion does not dictate your ability to get divorced. Below are answers to some common questions people have about religion and divorce.

Will My Choice of Religion Impact How a Court Treats Me?

It shouldn’t. Men and women stand on equal footing before the court, and a court does not apply any presumptions based on sex, religion, or race. If you have children, then a court will decide custody based on the child’s best interests. Generally, judges are not interested in your religion.

There are a couple of situations where religion might come into play. First, you might be a different religion than your spouse and children. For example, you could be raising your children Jewish while you are a Catholic. A judge might want to know how granting you custody will impact the child’s religious upbringing. One of the factors a judge considers under CRS §14-10-124 is how the child has adjusted to the community, and this can include the religious community. If your child is a teenager, then you will strengthen your argument if you show you are tolerant of his or her religion.

Second, you might cover your face as part of your religion. During a hearing, the judge might ask you to remove your veil so that he or she can see your face during testimony. If this is an issue for you, discuss it with your attorney ahead of time.

Will the Court Apply Religious Law?

No. A court applies Colorado’s divorce law regardless of what religion you and your spouse practice. It also doesn’t matter what faith the religious leader was who married you. For example, a Colorado court will not grant a Sharia divorce to a Muslim couple. Instead, the judge applies Colorado law.

Can I Choose What Religion My Child Practices?

This is a very complicated question. As part of a divorce, a court will determine parenting responsibilities and parenting time. Parents can share parenting responsibilities, such as determining a child’s religious upbringing. If you and your ex share this responsibility, then you need to come to an agreement on religious upbringing. In some cases, judges allocate final decision-making authority to one parent, who will ultimately get the say on religious upbringing. If authority is truly split equally, then a judge will probably need to decide the issue when parents cannot agree.

What happens if you are the only parent who was given parental responsibilities? Although rare, this does happen. For example, the other parent could have been absent or abusive. If you alone have parental responsibilities, then you can decide your child’s religious upbringing.

Questions about Religion and Divorce? Contact Divorce Matters

We are a team of divorce lawyers in Colorado which has represented many men and women involved in dissolution of marriage proceedings. If you have any questions, please contact us today.

Changing Your Last Name after a Divorce in Colorado

Historically, a woman took her husband’s last name upon marriage. Over the past decade or so, some men have begun taking their wife’s last name, or the couple got combined names. The same is true of same-sex couples that have gotten legally married.

But, what happens if you want to change your last name after divorce? Fortunately, Colorado law does allow you to change your name. Read on for more information about the process and requirements of changing your last name after a divorce in Colorado

What is the Process for Changing My Last Name?

You can request a change in last name as part of the divorce proceeding. Make the request on your divorce petition. The judge will then include the change in the divorce decree.

If you don’t make the request as part of the divorce, then the process for changing your name is more complicated. You will need to complete and file a Petition for Change of Name and undergo a criminal background check. You might also need to publish your intention to change your name at least 3 times in at least 21 days in a newspaper, unless you qualify for an exception.

What Documents Do I Need to Update?

After the name change goes through, you should update the following:

  • Social Security card
  • Driver’s license
  • Passport
  • Bank accounts
  • Any employer’s records

You should get multiple copies of the decree granting your name change from the court clerk.

Can I Force My Spouse to Remove My Last Name?

No. You cannot decide what last name your spouse uses after divorce. That is for your ex to decide. However, you could include it in the divorce negotiations. For example, you might be willing to give up some marital property in exchange for your spouse changing her last name.

Can I Change My Children’s Last Name?

This will depend on the circumstances. If both parents agree to the change, then you should be able to include the request as part of the divorce. However, problems arise when one parent objects to the name change. In that situation, a judge will need to decide whether the name change is in the child’s best interests.

You can look at the list of “best interest of the child factors” found at CRS §14-10-124. Most of them won’t seem relevant to deciding what last name your children use. Typically, a judge will look at your reason. If the child’s father has been absent, then a judge might consider changing the last name. The same is true if the child’s father has been abusive.

If the judge grants a change, you need to update relevant records, including:

  • School records
  • Medical records
  • Social Security information
  • Any financial records in your child’s name

Speak to a Divorce Lawyer

Name changes can be vigorously contested in divorce proceedings, and you need an attorney who understands how a judge will analyze these cases. Contact Divorce Matters today. One of our lawyers will be happy to meet with you to discuss your options.

Do I Still Have Rights if We Didn’t Get a Marriage License?

For various reasons, couples sometimes don’t obtain a marriage license. Perhaps they don’t want to involve the state in their relationship, or they choose to have a religious marriage but not a civil one.

Regardless of the reasons for never getting a license, these couples can end their relationships just like married people. And when they do split, one or both partners begin to wonder if they have the same rights and protections as those who actually went through with the legal formalities.

The answer is “maybe.” Colorado is one of a handful of states that recognizes common law marriage, which will effectively make the couple married.

The Requirements for Common Law Marriage

Common law marriage hails from the days when people on frontier country wanted to get married but there often wasn’t a justice of the peace anywhere around. Instead of going to find one, a couple could just move in together and start calling themselves husband and wife.

Colorado still recognizes common law marriages, though there are plenty of justices of the peace around. To qualify, your relationship must meet the following requirements:

  • Both spouses must be 18 or older
  • Both must have consented to marriage
  • The couple must live together as a married couple
  • The couple must hold itself out to the public as married

As you can see, there is no requirement that a couple live together for a certain amount of time. Also, living together for decades does not create a common law marriage.

One key element is whether the couple held themselves out as married. This can include identifying each other as husband and wife, owning property jointly, using the same last name, listing each other on their retirement or life insurance plans, and even filing joint income tax returns. However, if one person says, “We’re getting married eventually,” then they are not married.

Rights During a Divorce

Common law marriage might exist, but common law divorce does not. Instead, a couple will need a judge to grant a divorce decree.

The divorce will proceed just as the divorce of a couple who obtained a marriage certificate would. However, at the outset, the judge will need to first determine if a common law marriage existed. If not, the couple does not need to be divorced.

If a judge finds the couple married, they must divide their marital property, which is generally the property they obtained while married, along with marital debts.

If the couple has children, the judge will need to assign the rights and responsibilities by approving a parenting plan. A judge will also award child support.

A spouse might also have a right to alimony, which is spousal support.

Contact Divorce Matters Today if You Have Questions About Divorce without Marriage License in Colorado

If your relationship is ending, you need to fully understand your rights. Splitting up is difficult financially for many people, especially women. Even if you never got a marriage license, you may still be entitled to spousal maintenance and child support. Call us today to discuss your specific situation.

Winner of the 2019 Divorce Matters Scholarship Announced

Divorce Matters is pleased to announce Ryan Shepherd as the winner of our 2019 Divorce Matters Scholarship. We received lots of applications this year, and while there were many qualified applicants, Ryan stood out among them. Our selection team was impressed by Ryan’s academic qualifications, extracurricular work, and essay response. We extend our congratulations to him for this accomplishment.

Ryan will be attending Regis University in Denver this fall. He is a Colorado transplant and an avid outdoors enthusiast who enjoys snowboarding, mountain biking, hiking and fishing.

Upon being notified of the award, Ryan said his day was made much brighter and shared the following quote with us:

“A seed grows with no sound, but a tree falls with huge noise. Destruction has noise, but creation is quiet. This is the power of silence. Grow Silently.”

We are honored to be able to help assist Ryan in achieving his educational goals with this scholarship.

We also thank everyone who took the time to apply this year and wish you all the best in you academic futures.

Dealing with Child Abuse in Colorado

Child abuse is a serious problem around the nation. According to the National Children’s Alliance, about 700,000 children are abused annually, though many more will be abused at least once during their childhood. Abuse can take many forms, including physical or sexual abuse, or emotional terrorism.

If you are in an abusive marriage, your spouse might also be abusing your children. You have options for protecting both yourselves and your children, but you need to take the proper steps. If you are asking yourself “what to do if my child is being abused by my spouse in Colorado,” we are prepared to assist you immediately.

What is a Protection Order?

This is a court order instructing your spouse to do (or refrain from doing) certain things:

  • Move out of the home
  • Limit or prohibit contact with you and the children
  • Not come within a certain distance of you and the children, including the children’s school
  • Not possess a firearm

If your spouse violates the order, the police will pick them up and take them to jail. A judge can also impose other penalties. Under CRS 18-6-803.5, violating a protection order is a misdemeanor offense and carries penalties of up to $5,000 in fines and up to 18 months in jail. A repeat offender faces even more serious consequences.

How Do You Obtain a Protection Order?

C.R.S. § 13-14-103 states that you can get an emergency protection order from a county or district court. When a minor is being abused, you can get the emergency protection order from either the juvenile or district court. Local law enforcement can also request an emergency protection order. This might happen if you call the police during a violent episode.

The court should have standardized forms that you fill out to request a protection order. The clerk should be able to help you find the form you need. However, you can also work with an attorney, which can make things much easier. If you are being abused, remember to get a protection order for yourself in addition to the children.

An emergency order is only good for a limited amount of time. Your spouse will have a chance to object to the protection order at a hearing before a judge issues a permanent protection order. At the hearing, you will need to present evidence of the abuse, such as witness testimony and medical or police records. An emergency order is often a vital first step since it can be issued immediately and provides peace of mind.

How Can a Lawyer Help Me?

A lawyer can make sure that you file your protection order properly. Many abused spouses also request a protection order when they have finally made the courageous choice to end their marriage. Because you might fear your spouse retaliating, you should make sure you have all of your ducks in a row and get a protection order for you and your children.

Divorce Matters can help. We are a Denver law firm specializing in divorce and family law with years of experience obtaining protection orders for our clients. Please contact us today.